Dorrel Richards v. Ryerson University, 2015 HRTO 1210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dorrel Richards

Applicant

-and-

Ryerson University

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: September 11, 2015

Citation: 2015 HRTO 1210

Indexed as: Richards v. Ryerson University

APPEARANCES

Dorrel Richards, Applicant

Eric P. Polten, Counsel

Ryerson University, Respondent

Giselle G. Basanta, Counsel

Introduction

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

2The Tribunal directed that a half-day preliminary hearing would be held to address the issue of whether the Application is outside of the Tribunal’s jurisdiction because it was filed more than one year after the incidents of alleged discrimination.

Background

3The applicant was enrolled at the respondent university in the fall of 2012. She alleges that she experienced discrimination when a professor failed to extend a deadline which she required as an accommodation of her disability-related needs and that she was subjected to unfair treatment on the basis of her race.

4In section 7(c) of the Application, “What is the date of the last event?” the applicant responded, “Dec. 2012(1^st) March 2014(last). The narrative attached to the Application describes her experiences at the respondent university when her professor denied her request for further time to complete her work in October 12, 2012 and she was given a mark of zero in her final mark in two courses in December 2012. Neither the narrative nor the supplementary materials filed by the applicant’s counsel outline any allegations of discrimination that occurred in March 2014.

5The applicant appealed her marks in these courses to the department and faculty. These appeals were denied and the applicant made a further appeal to the respondent’s Senate Appeal Committee. In her materials filed with the Senate Appeal Committee she alleged that her professor had discriminated against her on the basis of her gender, marital status, place of origin and disability.

6Because the applicant raised the allegations of discrimination in her appeal materials, the process before the Senate Appeal Committee was put on hold until the respondent’s Discrimination Harassment and Prevention Office could investigate the allegations. The Discrimination Harassment and Prevention Office concluded that there was insufficient evidence to support the allegations.

7The applicant appealed the conclusions of the Discrimination Harassment and Prevention Office to the Dean of the Ted Rogers School of Management at the respondent university and then further appealed the conclusions to respondent’s Provost and Vice Principal Academic. The decision of the Discrimination Harassment and Prevention Office was upheld at each level after which the Senate Appeal Committee re-activated the applicant’s academic appeal. On May 29, 2014, the Senate Appeal Committee delivered its decision upholding the decision of the Discrimination Harassment and Prevention Office and denying her academic appeal.

8This Application was filed May 28, 2014.

DELAY ANALYSIS AND DECISION

9The Code provides that in order for the Tribunal to have jurisdiction over the subject-matter of the Application, 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.

10I must first determine the 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.

Do The Events After December 2012 Form A Series Of Incidents?

11The applicant submits that the issuing of the course grades in December 2012 and all the steps taken by the applicant up to the decision of the Senate Appeal Committee are a series of incidents. The applicant submits that because the last incident, the decision of the Senate Appeal Committee, is within one year of the date of the filing of the Application, the Application is within the Tribunal’s jurisdiction.

12The issue of when there is a series of incidents that bring the Application within the one-year time limit was addressed by the Tribunal in Garrie v. Janus Joan Inc., 2012 HRTO 1955. A summary of the law is set out in paras. 30 and 32 of that decision, which say:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

As we have indicated, the underlying principle from the Divisional Court’s decision in Visic, supra, where the Ontario Divisional Court adopted the test for a “continuing contravention” was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:

What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

13In this case the allegedly discriminatory decision took place in October and December, 2012 when the applicant’s professor denied the extension of time to complete the work and then assigned a zero grade for the courses. The subsequent decisions of the respondent through the various levels of appeal and the final decision of the Senate Appeal Committee cannot be characterized as repetitions of separate contraventions of the Code. In the Reply filed by the applicant and in her submissions made during the summary hearing, the applicant characterizes the investigation done by the Discrimination Harassment and Prevention Office as unfair stating, “it is … very questionable if she was given enough opportunity or support to properly explain her situation and the discrimination she experienced” and that one “would expect a higher level of sophistication and investigation from the [Office]”. The applicant described the process of the Senate Appeal Committee as “too perfunctory” as it “did not even acknowledge the facts in blatant disregard of the evidence before it”.

14The applicant is not alleging that that she experienced discrimination and contraventions of the Code during the respondent’s investigation and academic appeal processes. Although she stated in her Application “racist and unfair behaviour during the investigation” and “a culture of racialization”, she provided no details about facts to support these allegations in her Application or during the summary hearing.

15In my view, the events which post-date December 2012 do not form part of a series of incidents of discrimination within the meaning of the Code. Rather, they represent the ongoing effects of the decision in December 2012 to assign the applicant the failing grades.

16I find that the Application was not filed within the time required by section 34 of the Code.

Was The Delay Incurred In Good Faith?

17Having determined that the Application was not filed within the required time limit, the issue of whether the delay was incurred in good faith must be considered.

18The applicant submits that the delay was incurred in good faith. She had previous experience with the respondent’s academic appeal process and had had success with this process. As a result of this experience, the applicant remained hopeful that in this situation she would again have success through the academic appeal process. As well, the applicant submits that she feared the internal problems or the soured relations she would face if she filed her complaint at the Tribunal.

19The question of whether waiting for the conclusion of other processes constitutes a good faith explanation for delay in filing an Application has been considered in several decisions of the Tribunal. In general terms, the Tribunal has found that it does not establish a good faith explanation for the purposes of section 34 of the Code.

20In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. 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.

21Huo v. University of Western Ontario, 2012 HRTO 198, was a case where the applicant filed the Application after the completion of a University complaint process. The Tribunal commented, at paragraph 18:

With respect 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.

22In the present case, there do not appear to be any circumstances that would justify diverging from the general approach that waiting for the conclusion of another process does not provide a good faith explanation for the delay in filing the Application. In fact, as the respondent pointed out in its submissions, the applicant did not actually wait for the conclusion of the academic appeal process. She filed this Application on the day before the Senate Appeal Committee issued its decision on her academic appeal.

23I do not find that the applicant has demonstrated that her concern about the internal problems that could arise should she file an Application at the Tribunal was a good faith reason for the delay. The most significant relationship that could be impacted by filing an Application would be the relationship she had with the professor about whom the allegations are made. The applicant raised these same allegations at the Discrimination Harassment and Prevention Office and the professor would have been made aware of the allegations through that investigation. I therefore find that the applicant has not provided a good faith explanation for the delay in filing the Application with respect to the alleged events in December 2012 and earlier.

Order

24The Application is dismissed.