Taucar v. University of Western Ontario, 2015 HRTO 257

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haruyo Taucar Applicant

-and-

The University of Western Ontario, Donna Pennee and Lisa Ann Korab Respondents

B E T W E E N:

Haruyo Taucar Applicant

-and-

Western University Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: March 4, 2015 Citation: 2015 HRTO 257 Indexed as: Taucar v. University of Western Ontario

1This Interim Decision is written to address still further allegations of a reasonable apprehension of bias raised by the applicant in correspondence to the Tribunal subsequent to my further Interim Decision in this matter dated February 12, 2015 (2015 HRTO 197), as well as to address various case management issues.

Further allegations of bias

2While the applicant has filed a Request for Reconsideration in relation to my Interim Decisions dated January 28, 2015 and February 12, 2015, reconsideration is only available from a "final decision" of this Tribunal: see Rule 26.1. As these decisions simply denied the applicant's requests for an amendment of her two outstanding Applications and also dealt with other case management matters, they do not constitute final decisions in that they did not dispose of some or all of the central issues in the Applications as between the parties: see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 at para. 41.

3To the extent that the applicant seeks further reconsideration of my Interim Decision dated October 11, 2013 (2013 HRTO 1725), this decision already was the subject of a Request for Reconsideration that was addressed in my Reconsideration Decision dated January 15, 2014 (2014 HRTO 63). As stated in Rule 26.7.1, where a Request for Reconsideration has been determined, the Tribunal will not consider a subsequent Request for Reconsideration of the same decision, absent exceptional circumstances, and the Tribunal need not give reasons for a decision not to consider a subsequent Request. In my view, there are no exceptional circumstances that warrant further reconsideration of my Interim Decision dated October 11, 2013.

4In any event, I have reviewed and considered the submissions made by the applicant in support of her Request for Reconsideration, and will treat this as a request for Order during Proceedings seeking my removal as the assigned adjudicator in this matter and that all of my previous decisions be vacated on the grounds of a reasonable apprehension of bias.

5As I already have addressed the applicant's previous allegations of a reasonable apprehension of bias that pre-date my Interim Decision dated February 12, 2015, I will not address them again in this Decision. Once again, I have directed myself to the test for reasonable apprehension of bias and the applicable principles that apply when such allegations are raised as set out in my Interim Decision dated January 28, 2015 in considering the allegations raised by the applicant that are addressed herein.

6The applicant's contention is that she alleged reprisal in her original Application dated April 17, 2010 in respect of all allegations raised in Schedule "A" attached to that Application, and that her allegation of reprisal in respect of these allegations was never referred for a summary hearing or addressed in my Interim Decision dated October 11, 2013 resulting from that summary hearing. As a result, the applicant contends that her allegation of reprisal in respect of all allegations set out in Schedule "A" to her original Application remains outstanding, does not require any amendment to allege reprisal, and should proceed as part of the upcoming hearing in this proceeding.

7The problem with this contention, as set out in my Interim Decision dated February 12, 2015, is that while the box for "reprisal" was indeed checked off by the applicant in the Form 1 portion of her Application, an applicant who alleges a violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), with respect to employment is also required to complete a Form 1-A that forms part of the Application. In the Form 1-A, an applicant is required to provide further details regarding what specific allegations she is raising in relation to the grounds for a violation alleged in the Form 1 part of the Application, and also is required to set out the basis for these allegations in relation to each ground alleged.

8The Form 1-A specifically includes a section headed "Questions about Discrimination on the Ground of Reprisal" and asks the applicant to explain why she believes that she was reprised against. As set out in my Interim Decision dated February 12, 2015, the only allegation raised by the applicant under the ground of reprisal in the Form 1-A arises from an alleged statement made by Dean Pennee on or about August 18, 2009 that the University might shut down the Japanese program.

9In contrast, in other sections of the Form 1-A relevant to the applicant's original Application, when the applicant was asked to explain why she believes she was discriminated against on the grounds alleged, express reference is made to the allegations as set out in Schedule "A" to the Application. This includes the section of the Form 1-A regarding the applicant's allegations of discrimination because of disability, which encompass her allegations of a failure to accommodate disability-related needs, and the section of the Form 1-A regarding her allegations of workplace harassment and poisoned work environment. As I observed in my Interim Decision dated February 12, 2015, no reference to the allegations as set out in Schedule "A" is made in the specific section of the Form 1-A regarding the applicant's allegation of reprisal.

10In her submissions, the applicant makes reference to an earlier part of the Form 1-A which asks an applicant to describe how she believes that she was discriminated against, and sets out various boxes for the applicant to check off. In her original Application, the applicant checked off the boxes to indicate that she believed she had been discriminated against: in scheduling; in comments, displays, jokes, harassment, or a poisoned work environment; in being denied necessary accommodation or modified work in the workplace; and "other", in which she makes express reference to Schedule "A" to the Application and cites, as an example, being required to submit voluminous documents within an inadequate time frame while suffering from a disability (this is referred to as Complaint #3 in Schedule "A" to the original Application and was dismissed by my Interim Decision dated October 11, 2013).

11The applicant submits that there is no specific box in this part of the Form 1-A to check off reprisal. That is true. It might equally be observed that in this part of the Form 1-A, there is no box to check off to allege discrimination because of race, creed, sexual orientation or a multitude of other grounds protected under the Code. That is because that is not the purpose of this part of the Form 1-A. The purpose of this part of the Form 1-A is to try to get an applicant to clarify the specific adverse actions she is alleging as against the employer that form the basis for her claim, not to explain how these various adverse actions are linked or connected to any specific ground of discrimination set out in the Code. It is in the later portion of the Form 1-A that an applicant is asked to explain how the adverse actions as set out in the Form 1 and the earlier portion of the Form 1-A are linked or connected to a ground protected under the Code, including reprisal.

12That the applicant understands this is evident from the reprisal Application that she subsequently filed on December 4, 2013. In completing the part of the Form 1-A to her reprisal Application that asks how the applicant believes she was discriminated against, the applicant checked off the boxes for: in a hiring decision; and "other", which she explained as the failure to offer the Japanese beginner's summer course in 2011 for which the applicant had seniority, and also made express reference to Schedule "A" to the reprisal Application "for other expressions of hostility and reprisal". And then, in the specific section that asks the applicant to explain how she believes she was reprised against, the applicant describes her allegations of reprisal. These are the same allegations of reprisal that are raised and elaborated upon in Schedule "A" to the Application.

13As a result, it is of no assistance to the applicant to point to the earlier part of the Form 1-A to her original Application to claim that she alleged reprisal in relation to the various adverse actions identified, as she clearly did not do so. When specifically asked on the Form 1-A to explain how she believed that she had been reprised against, the applicant made reference only to the comment alleged to have been made by Dean Pennee on or about August 18, 2009.

14The applicant next relies upon the part of the Form 1-A to her original Application in which she alleges that she experienced discrimination in employment as a result of "harassment" or a "poisoned work environment". The applicant also relies upon certain paragraphs from Schedule "A" to the original Application in which she alleges a "pattern of harassment" or an "environment of harassment". It is trite to observe that the Code does not protect against "harassment" or a "poisoned work environment" in the abstract. In order to amount to a violation of the Code, an applicant must establish that harassment or a poisoned work environment was "because of" one of the grounds protected under the Code, such as disability, race, creed, gender etc. The Code's protection against workplace harassment (with the exception of workplace sexual harassment) is set out in s. 5(2) of the Code. Under this Tribunal's jurisprudence, a poisoned work environment has been regarded as a form of discrimination, by essentially making it a term or condition of a person's employment that they must endure a poisoned environment, which is protected under s. 5(1) of the Code. In both s. 5(1) and s. 5(2) of the Code, the legislation only protects against discrimination or harassment if that conduct is "because of" one of the listed grounds.

15In contrast, reprisal is not a form of harassment or discrimination, but is protected under an entirely distinct section of the Code, namely section 8. In the portion of section 8 that is relevant to this proceeding, this provision states that "every person has a right to claim and enforce his or her rights under this Act … without reprisal or threat of reprisal for so doing". In order to establish reprisal in violation of section 8 of the Code, an applicant does not need to prove that the reprisal was engaged in "because of" one of the grounds listed in, for example, s. 5(1) or s. 5(2) of the Code. Rather, the link or connection that must be made is to an applicant having claimed or enforced her Code rights and having experienced reprisal as a result.

16As a consequence, it is of no assistance to the applicant to point to allegations of "harassment" or a "poisoned work environment" as may have been raised in the original Application as a basis for claiming that these allegations somehow encompassed an allegation of reprisal. Protections against harassment and a poisoned work environment are separate and distinct rights under the Code from protection against reprisal, are protected under different Code provisions, and have different elements required to establish a violation of these distinct rights.

17As a result, having reviewed and considered the applicant's submissions as appended to the Request for Reconsideration, I find that there is no basis to support the applicant's contention that reprisal already was claimed in the original Application in relation to all of the allegations raised in Schedule "A" to that Application. Rather, as stated in my Interim Decision dated February 12, 2015, I find that the only reprisal allegation raised in the original Application relates to the alleged comment by Dean Pennee made on or about August 18, 2009. As a result, an amendment to the original Application would be required in order to allege reprisal in relation to the allegations set out in Schedule "A" to the original Application, which I allowed in part in my Interim Decision dated January 28, 2015 as it relates to the allegations from the original Application that remain following my Interim Decision dated October 11, 2013, but disallowed as it relates to the allegations that were dismissed by that Interim Decision.

18I further find that there is no basis to support any reasonable apprehension of bias on my part, and I will accordingly continue as the assigned adjudicator in this matter.

19In my Interim Decision dated February 12, 2015, I had ordered the applicant to advise within 14 days whether she still intends to proceed with the one specific reprisal allegation raised in the original Application and whether or not she intends to accept the amendments to her original Application as granted by my Interim Decision dated January 28, 2015. In correspondence to the Tribunal dated February 26, 2015, the applicant states that she will not rely on the "emasculated" reprisal claim and pleadings that she says I imposed on her. I can only interpret this to mean that the applicant does not intend to proceed with any allegation of reprisal in respect of the allegations in her original Application that remain as a result of my Interim Decision dated October 11, 2013. In addition, as the applicant has not confirmed within the specified period that she intends to proceed with the one specific reprisal allegation raised in the original Application, namely the alleged comment by Dean Pennee, I can only conclude that she does not wish to do so.

Case management

20The hearing in this matter currently is scheduled to commence in Toronto on May 7, 2015, at 12:00 noon. The Tribunal had also offered the parties potential hearing dates on May 4, 5 or 6, 2015. While respondent counsel is not available on May 5 or 6, 2015, due to an already scheduled hearing, she has indicated that she could be available on May 4, 2015, although she had planned to prepare for her hearing that day. With apologies to respondent counsel for disrupting her plans, it appears that we will need to use May 4, 2015 as an additional hearing day in this matter. Accordingly, the hearing will also take place on May 4, 2015, in Toronto, commencing at 12:00 noon.

21It is my expectation that these two hearing days will be sufficient to hear the applicant's evidence in its entirety, including examination-in-chief, cross-examination and any proper re-examination. This expectation appears to be shared by applicant counsel. My expectation for the first day of hearing on May 4, 2015 is that I will hear brief opening statements from the parties and that the applicant's examination-in-chief will be completed by day's end. My expectation for May 7, 2015 is that we will proceed with and complete the applicant's cross-examination and any proper re-examination.

22In a letter dated February 26, 2015, and signed by the applicant's doctor, it has been requested as an accommodation for the applicant that applicant counsel be permitted to read certain documents into evidence after the conclusion of the applicant's evidence. That is not necessary. My practice is to mark the documents filed by the parties for the hearing as exhibits at the outset of the hearing, subject to any objections that may be raised as to the admissibility or authenticity of any particular document. I do not need any witness, or counsel, to take me to a document solely for the purpose of authenticating the document, if no objection is raised as to its authenticity, and I do not need any witness or counsel to read to me from any document. By the time the hearing commences, I will already have reviewed in detail all documents filed by the parties for the purpose of the hearing. Of course, if a witness has evidence to provide to give context to any document or to elaborate upon any document, that is fine. In addition, I will not necessarily accept assertions made in documents for the truth of their contents, particularly on material issues, and will need to hear direct evidence of such matters.

23It is my view that it would be appropriate to schedule an additional three days to complete the hearing of this matter. In my Interim Decision dated February 12, 2015, I had ordered the applicant within 14 days to provide an explanation to justify the unavailability of herself or her counsel for hearing dates previously offered in May 2015 as well as hearing dates in subsequent months. In correspondence to the Tribunal dated February 26, 2015, applicant's counsel states that the hearing dates on May 4 and 7, 2015 should be "sufficient as far as the applicant's attendance is concerned" and that counsel will be available for other dates without the applicant's attendance as she will be out of the province. Applicant's counsel did not, however, specifically advise as to his availability for the hearing dates in May and June 2015 previously offered to the parties.

24The respondents previously had indicated their availability on the following dates: May 11-13, June 1-2, 8-12, and 30, 2015. Accordingly, in the absence of any indication from applicant counsel that he is not available on those dates and given that the applicant does not appear to intend to attend the hearing beyond the days required to give her evidence, I propose that June 8, 9 and 10, 2015 also be scheduled for the hearing in this matter, during which days I will hear any witnesses the applicant intends to call apart from herself, the respondents' witnesses, and any proper reply evidence. I also expect that we will have time to hear oral submissions from the parties at the conclusion of the evidence before the end of those hearing days, although I am open to the filing of written submissions if the parties prefer. Apart from the hearing days scheduled for May 4 and 7, 2015, any further hearing days will take place in London and will commence at 10:00 a.m.

25I appreciate that the respondents indicated their availability on these June dates on January 30, 2015, and availability may have changed since then. If the respondents are no longer available on June 8, 9 or 10, 2015, they shall so advise the Tribunal within seven calendar days of the date of this Interim Decision and propose alternate hearing days when they are available. I remain available on June 11-12 and 30, 2015. In the event that applicant counsel misunderstood what I had directed in my Decision dated February 12, 2015, I also will afford him an opportunity within seven calendar days of the date of this Interim Decision to advise the Tribunal and the respondents if he is unavailable on June 8, 9 or 10, 2015 and also to advise as to his availability for the alternate proposed dates of June 11, 12 or 30, 2015. If applicant's counsel states that he is not available for any of these proposed hearing dates, then he shall provide an explanation to justify his unavailability. The respondents shall do likewise if they state that they are no longer available for any of the proposed hearing dates in June 2015.

26The applicant has raised the prospect of commencing an application for judicial review in relation to various of my decisions, and has raised the issue of whether or not the hearing will even be able to commence on May 4 and 7, 2015. As no application for judicial review has yet been commenced, no such issue arises and it is my expectation that the hearing will commence as scheduled and that all parties will have complied with their disclosure and pre-hearing obligations under the Rules and be prepared to proceed with the hearing on May 4 and 7, 2015. At such time as any application for judicial review may be commenced by the applicant, she may request an adjournment of the hearing at that time. However, unless and until any such adjournment is granted, I expect the parties to comply with their obligations under the Rules and be prepared to proceed with the hearing as scheduled.

27In his February 26, 2015 letter, the applicant once again has raised the issue of communications about evidence given at the hearing between respondent counsel and any personal respondents who do not attend the hearing. This issue was already addressed in my Interim Decision dated February 12, 2015 at para. 13.

28Finally, the applicant has submitted to the Tribunal a letter signed by her doctor regarding a request for accommodation of her disability by permitting her to record the hearing. In my Interim Decision dated February 12, 2015, I directed the applicant to provide a letter written by her doctor on her doctor's letterhead. Instead, on February 26, 2015, the Tribunal received a letter not on the doctor's letterhead. It also is not clear that this letter was written by the applicant's doctor, though it was signed by the doctor. By letter from applicant counsel dated February 26, 2015, it is indicated that it has been difficult for the applicant to make an appointment with her doctor due to her doctor's schedule, but that it is hoped that she might be able to meet with her doctor later that day and arrange for at least some form of letter to be sent by close of business that day. To date, no such letter has been received. The Tribunal will consider the applicant's request for accommodation at such time as it receives a letter written by the applicant's doctor and that is on the doctor's letterhead.

ORDER

29For the foregoing reasons, I hereby make the following order:

a. The applicant's request for me to be removed as the assigned adjudicator in this matter on the basis of a reasonable apprehension of bias is denied;

b. The hearing in this matter will proceed in Toronto on May 4 and 7, 2015 commencing at 12:00 noon;

c. Within seven calendar days of the date of this Interim Decision, the parties shall advise if they are unavailable for the additional hearing dates tentatively scheduled for June 8, 9 and 10, 2015 in London commencing at 10:00 a.m., and, if not, provide their availability for alternate proposed hearing dates on June 11, 12 and 30, 2015. If either party states that they are not available for any of the proposed hearing days in June 2015, an explanation shall be provided.