HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Azad Kaushik
Applicant
-and-
University of Guelph
Respondent
-and-
University of Guelph Faculty Association
Intervenor
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Kaushik v. University of Guelph
APPEARANCES
Azad Kaushik, Applicant
W. Gerald Punnett, Counsel
University of Guelph, Respondent
Andrew N. Zabrovsky, Counsel
University of Guelph Faculty Association, Intervenor
Danielle Leon Soun Lin, Representative
Introduction
1This Application alleges discrimination with respect to employment because of ancestry, race and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Subsequent to the filing of the Application, the applicant withdrew the ground of race.
2By Case Assessment Direction dated September 9, 2015 (the “CAD”) the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.
3The summary hearing was conducted by teleconference on December 4, 2015.
Summary Hearing Process
4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
5The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.
6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.
7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in his possession or evidence that may be reasonably available to him, which tend to support the applicant’s belief that he has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support his allegations, there are no findings made at the summary hearing stage in relation to the evidence.
8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the application. Sometimes applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal’s process following a summary hearing 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.
9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this case as set out in the Application. For the purpose of my analysis I am assuming, without deciding, that all of the applicant’s allegations are timely.
The Facts
10The applicant commenced his employment with the respondent in 1991 as an Assistant Professor and has continuously been employed by the Respondent since that time, and was granted tenure and promoted to Associate Professor in 2000.
11The applicant alleges that he cannot function effectively as a faculty member because of the mistreatment he experienced at the hands of the respondent. He claims that the respondent has violated his freedom to speak, has evaluated him unfairly, denied him promotions, provided him inadequate research space, denied him inadequate resources for teaching, delayed his funding, made unauthorized deductions from his funding account, as well as, that his classes are too big, his office is not properly heated or cooled and that he has been denied natural justice. In addition, he claims that the respondent called into question his mental health.
analysis
12In order to determine whether the applicant’s perception of discrimination is born out, the Tribunal must decide whether there is evidence that the applicant has or is likely to have that will establish a link between the mistreatment he alleges and the applicant’s ancestry. Although it is not immediately clear from the Application, I understand that the applicant is of East Indian descent.
13It is clear that the applicant feels that he has been treated unfairly by the respondent. However, in the absence of a link to a protected ground under the Code, unfair treatment is not discrimination under the Code. In that regard, the applicant has failed to point to any evidence in his possession or evidence that might be available to him to support his belief that his ancestry was a factor in the way he was unfavourably treated by the respondent.
14In the absence of any real or cogent facts linking the respondent’s conduct with the applicant’s ancestry, his claim is essentially a bald allegation of discrimination based on the applicant’s suspicion and speculation that he was mistreated because of his ancestry. The applicant confirms as much when, in his submissions, he writes: “Such double standards reflect discrimination that could not be based on factors other than ancestry or race.”
15As for reprisal, the reprisal section of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-