A.B. v. Western University, 2015 HRTO 208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B. Applicant

-and-

Western University and Y.Z. Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: February 17, 2015 Citation: 2015 HRTO 208 Indexed as: A.B. v. Western University

WRITTEN SUBMISSIONS

A.B., Applicant Wade Poziomka, Counsel

Western University and Y.Z., Respondents Lisa Kwasek, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleges that she was discriminated against while attending a two-year Masters of Physical Therapy Program (the “MPTP”) at Western University during the Winter and Spring 2013 semesters.

2In particular, the applicant alleges that the respondents perceived her to have a learning disability, and that this perception resulted in adverse treatment which included:

a. Requiring the applicant to undergo psycho-educational testing to determine whether she had a learning disability;

b. Negative treatment of the applicant when she refused to undergo such testing;

c. Demeaning comments and treatment during the applicant’s clinical courses because of stereotypical perceptions relating to the applicant’s perceived learning disability;

d. Biased marking because of discriminatory perceptions relating to the applicant’s perceived learning disability; and

e. Refusing to allow the applicant the opportunity to use her second remedial examination resulting in two Fs on the applicant’s academic transcript.

3A hearing in this matter was originally scheduled for September 24 and 25, 2014, by Notice of Hearing dated June 23, 2014. It was later rescheduled to March 26 and 27, 2015, by Notice of Hearing dated September 21, 2014 because the applicant had retained legal counsel in July 2014.

4Pursuant to the first Notice of Hearing, the parties were to exchange their arguably relevant documents by July 14, 2014 and their hearing documents by August 11, 2014. Both parties exchanged their arguably relevant documents on July 21, 2014.

5Pursuant to the second Notice of Hearing, the deadline for filing the parties’ hearing documents was extended to February 9, 2015.

6On December 8, 2014, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking an order: (a) allowing the applicant to amend the Application to claim discrimination on the basis of race, ancestry, colour and ethnic origin; and (b) requiring the respondents to produce further documentation.

7The applicant requested a teleconference to discuss the issues raised in the RFOP. In my view, a teleconference is not necessary to decide these issues. Requests to amend pleadings and seek production are typically dealt with in writing.

Request to Amend the Application

8In her request to amend the Application, the applicant asserts that the way in which she was constructed by the individual respondent, a professor in the MPTP, was indicative of racial stereotyping, evidenced by her comments that the applicant was memorizing material and focusing on rote learning, that the applicant lacked critical thinking skills, and telling the applicant that she should “go back to Western”. The applicant asserts that these criticisms are based on racial stereotypes of South Asian individuals in that they are believed to lack the ability to critically reason and instead spend time memorizing and behaving robotically. The applicant asserts further that the individual respondent’s comment that the applicant should go back to Western is also racially based and is a proxy for telling individuals from India or Pakistan to “go back to where they came from”. The Applicant identifies as South Asian or Indian. The applicant submits the factual basis for the amendment is already contained in the Application and the Reply.

9The respondents object to the amendment request on the basis that the new allegation has no reasonable prospect of success.

10In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondents. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

11Documentary disclosure was exchanged between the parties on July 21, 2014. Three months before the hearing is to commence, the applicant sought leave to amend the Application to add a new ground of discrimination, completely different from the ground cited in the Application. Adding the grounds of race, ancestry, colour and ethnic origin fundamentally changes the nature of the case and the evidence to be called. In order for these grounds to proceed, it would be necessary, in my view, for the applicant to call evidence about the racial and other stereotypes that she is asserting were at play in the alleged adverse treatment. The respondents would likely call their own evidence in response. This would no doubt result in a second adjournment of the hearing dates. Because of the nature of the amendments (changing the very type of the discrimination alleged), the timing of the proposed amendments (three months before the hearing) and the prejudice to the respondents (likely having to call evidence in response), I am denying the amendment request.

Production of Documents

12The applicant has requested production of the following documents:

1. The number of students present in the PT9521, PT9522 and PT9527 courses during the Winter/Spring 2013 Cohort who were sent for disability screening/testing (without personal identifying information);

2. The number of students in the MPT graduate program over the past five years who have failed one examination and were recommended to attend for learning disability screening and whether they did so (without personal identifying information);

3. The scores of each individual examined in the PT9521 mid-term and the PT9527 mid-term and final examinations broken down by each student examination (without personal identifying information);

4. Whether any student was ever denied the opportunity to write a second remedial examination in the past five years and the circumstances around the denial, including documentation (without personal identifying information);

5. Whether any students were permitted to remain in the MPT graduate program after failing three examinations and/or clinical placements and the circumstances surrounding the exception, including documentation (without personal identifying information);

6. Copies of all failed examinations for any students who failed the individual respondent’s examinations in the Winter/Spring 2013 semester (without personal identifying information).

13The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The applicant has the burden of demonstrating that the documents sought are “arguably relevant” to the issues in dispute in the proceeding before the Tribunal.

14The issue in this case is whether discriminatory assumptions were made about the applicant based on the perception that she had a learning disability, and whether these assumptions resulted in adverse treatment summarized in paragraph 2. Although there is a reference to accommodation in the applicant’s RFOP and the respondents’ response, it is unclear to me how accommodation is in issue in this case when the applicant denies that she has a disability. The thrust of her complaint is discrimination arising from a perceived, not actual, disability.

15In my view, the treatment of other students is not arguably relevant to the issue of whether discriminatory perceptions influenced the treatment of the applicant. For example, the fact that no other student was sent for disability screening or that three other students were sent for disability screening (hypothetically speaking) does not shed light on the reasons why the applicant was sent for such screening. Production of this material will significantly lengthen the hearing as the focus will be on the particular circumstances of the other students and why they were sent for disability screening. This does not help me determine why disability screening was suggested for the applicant and whether discrimination was at play. Further, information about other students is really a fishing expedition to see whether there is some information that would be helpful to the applicant’s case. As stated above, it is the applicant’s onus to provide a factual foundation for arguable relevance. Finally, the request for production of information concerning other students is disproportionate to the utility of such information. It will require the respondents to go through paper files in order to obtain the data requested, for little purpose. For these reasons, I decline to order production of the information requested in categories 1 and 2. See Rule A3.1(c) of the Common Rules of the Social Justice Tribunals of Ontario.

16The applicant also requests information as to whether any other student was denied the opportunity to write a second remedial examination in the past five years, and the circumstances surrounding the denial. In addition, the applicant requests information as to whether any student was permitted to remain in the MPTP after failing three examinations and/or clinical placements, and the circumstances surrounding the exception. In my view, this information is not arguably relevant and is not proportionate to the issue before me. As stated above, the treatment of other students and their individual circumstances will provide little guidance as to whether discriminatory perceptions of the applicant’s perceived learning disability influenced the organizational respondent’s decision not to permit the applicant to write a second remedial exam and not to permit the applicant to remain in the MPTP. The applicant has not alleged discriminatory treatment when compared to students without (perceived) disabilities in relation to this allegation. This request is also a search for information that might be helpful to the applicant. For these reasons, the respondents are not required to produce the information requested in categories 4 and 5.

17Finally, the applicant requests production of the scores of each examiner in the PT9521 and PT9527 mid-terms and final exams (in 2013) broken down by each student examination without personal identifying information. She also requests copies of all failed examinations in the individual respondent’s courses (presumably PT9521 and PT9527) in the Winter/Spring 2013 semester. Under Rule 1.7 of the Tribunal’s Rules of Procedure, the Tribunal can order a party to produce any document, information or thing.

18The applicant’s allegation of biased grading does implicitly rely on the assertion that that she was graded unfairly as compared to others without a real or perceived disability. The applicant alleges that the discriminatory perception that she has a learning disability resulted in lower marks from the individual respondent as compared to other students. In order to test that theory, the applicant is entitled to the scores on the PT9521 and PT9527 mid-terms and final exams by examiner, without the identifying personal information of the student. She is also entitled to the underlying documentation – the individual examination documents. Thus, the documents requested in categories 3 and 6 are arguably relevant and should be produced.

19The respondents have advised the Tribunal that the examinations for these two courses have been destroyed pursuant to the university respondent’s retention policy which requires all examinations to be destroyed after one year. The examinations were taken between January and April 2013 and the first request for production of this material was in August 2014. As such, the respondents state they are unable to provide this information/documentation.

20I am unable to order production of information/documentation that cannot be collected because documents have not been retained. The applicant can make arguments at the hearing regarding any inferences that should be drawn from the respondents’ failure to retain this documentation.

Order

21The applicant’s request to amend the Application is denied and no further documentation is ordered produced.