Papanicolopoulou v. University of Windsor, 2015 HRTO 754

Human Rights Tribunal of Ontario

B E T W E E N:

Angela Papanicolopoulou

Applicant

-and-

University of Windsor, Reza Nakhaie, and Robert Arnold

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: June 9, 2015

Citation: 2015 HRTO 754

Indexed as: Papanicolopoulou v. University of Windsor

APPEARANCES

Angela Papanicolopoulou, Applicant

Self-represented

University of Windsor, Reza Nakhaie, and Robert Arnold, Respondents

Nancy Jammu-Taylor, Counsel

1This Application alleges discrimination with respect to services because of place of origin, ethnic origin, gender identity, and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant also alleges that she was reprised against contrary to section 8 of the Code.

2The Application was scheduled for hearing on May 14 and 15, 2015. The applicant was present with her mother. The respondents were represented by Nancy Taylor, counsel, and she was accompanied by Richard Taylor, the university’s Director of Legal Services.

3Following settlement discussions which did not resolve any of the issues in dispute, I heard evidence from the applicant and submissions from the parties about issues relating to the scope of the Application and the Tribunal’s jurisdiction to deal with it. In particular, as discussed in more detail below, there is an issue about whether parts of the Application should be dismissed for delay. After hearing this evidence and submissions, I determined that it was appropriate for me to make a decision about these issues before the hearing could continue. The hearing was accordingly adjourned.

Background

4The organizational respondent is a university. The applicant was enrolled in the graduate student program from 2003 to 2012 as a PhD candidate. The program involved taking classes and then work on a dissertation. The applicant successfully completed the classes but did not complete her dissertation. A candidate’s work on a dissertation is supervised by a committee. Reza Nakhaie, one of the personal respondents, was the applicant’s primary supervisor and the chair of the committee for the period from March 2010 to December 2012.

5In the Application, the applicant alleges that Professor Nakhaie made discriminatory comments about her in the period that he was her supervisor. She alleges that these comments show that he was prejudiced against her and that this prejudice contributed to the events that made it impossible for her to complete her dissertation.

6The respondents deny that any discriminatory comments were made or that there was anything involving any of the applicant's Code-protected rights that contributed in any way to the applicant's failure to complete her dissertation. The respondents assert that Professor Nakhaie and the University went to considerable lengths to support the applicant but that she was unable to produce a defensible dissertation. The respondents assert that a PhD candidate is usually expected to complete the course work and dissertation in no more than seven years. In this case, extensions were provided by the organizational respondent. However, after nine years a defensible dissertation was not produced and she was asked to leave the program on that basis in December 2012.

7The applicant's allegations in this Application were also made in a complaint to the University’s Office of Human Rights, Equity and Accessibility. An investigator met with the parties, interviewed a number of people who were involved, and produced a comprehensive report which found that the applicant’s allegations of Code-related discrimination or harassment could not be substantiated.

8The applicant exercised her rights to appeal the decision of the department that she should be withdrawn from the program up to the University Senate, but was unsuccessful.

9The applicant filed the Application with this Tribunal soon after the decision of the Senate and the final report of the Human Rights investigation, both of which were issued in June 2014.

Allegations of reprisal

10Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

11The applicant alleges that she had a conversation with Robert Arnold, the other personal respondent, in July 2013. He is a colleague of Professor Nakhaie, but was not involved in supervising the applicant’s dissertation. The applicant alleges that during this conversation, Professor Arnold said that if she were to drop her complaint to the university’s Human Rights Office, Professor Nakhaie would agree to produce a paper with her, on which they would be co-authors. He told her that if she did not agree to drop her complaint, she would have limited options, which he said could include going to China to teach English, or ending up in a life of poverty in Canada. The applicant alleges that this conversation was a form of reprisal and contrary to section 8 of the Code.

12The respondents deny that this conversation occurred.

13In 2015, and after she filed the Application with this Tribunal, the Application applied to the University for re-admission. Her application was denied. The applicant alleges that the decision to deny her application for re-admission was influenced by the fact that she had raised her allegations of discrimination and, on that basis, alleges that the decision to not allow her application for re-admission was made in reprisal contrary to section 8 of the Code.

The timeliness issue

14Section 34 of the Code provides:

(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.

15The Application was filed on June 27, 2014. The one-year period referred to in section 34 was therefore between June 27, 2013 and June 27, 2014. The allegations relating to the applicant's dissertation concern events that occurred in December 2012, when she was required to leave the program, and earlier. These alleged events therefore did not occur within the one-year period.

16The only alleged incident that occurred during the one-year period was the alleged conversation with Professor Arnold in July 2013.

17The allegations about December 2012 and earlier could nevertheless be dealt with by this Tribunal if they were part of a series of incidents, the last of which occurred within the one year before the Application was filed. The applicant argues that the July 2013 conversation with Professor Arnold was directly related to the earlier allegations and that there is therefore a series of events, the last of which occurred within one year of the filing of the Application. The respondents submit that the alleged conversation in July 2013 is not part of a series of alleged incidents about the applicant’s dissertation. The respondents submit that the alleged conversation, which they deny occur, was an isolated incident and not sufficiently connected to the earlier allegations to be considered as part of a series of incidents for the purpose of section 34 of the Code.

18In the event that I find there was not a “series of incidents”, the allegations about December 2012 and earlier could also be dealt with by this Tribunal if there is a good faith explanation for the delay in filing the Application with the Tribunal. In this regard, the applicant submits that there is a good faith explanation for any delay, which was that she had made a complaint to the University’s Office of Human Rights. She made that complaint in June 2013 and it was not completed until June 2014. The applicant testified that she understood that she could not have two concurrent proceedings going on about the same thing. She therefore waited until the University’s process was complete before filing the Application with this Tribunal. She filed the Application shortly after receiving the final report of the Office of Human Rights Investigator. She therefore believes that there is a good faith explanation for the delay.

19I will deal first with the applicant's good faith explanation for the delay and then turn to the question of whether the alleged reprisal in July 2013 is part of a series of alleged incidents.

Is there a good faith explanation for the delay?

20The applicant submits that there is a good faith explanation for the delay in filing the Application with respect to the allegations about events in December 2012 and earlier, which was that she was waiting for the conclusion of the investigation by the University’s Office of Human Rights. She formally filed that complaint in June 2013, within six months of the events in December 2012. A preliminary Report was prepared by the Office of Human Rights in February 2014. However, in March 2014, the applicant reported the alleged July 2013 conversation with Professor Arnold which I have discussed earlier, and asked that it be part of the investigation. The Office of Human Rights produced a final report on June 7, 2014. It concluded that applicant’s allegations of Code-related discrimination and reprisal were not substantiated. The applicant filed the Application with this Tribunal on June 27, 2014.

21The 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.

22In 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.

23Huo 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.

24In the present case, there do not appear to be any specific factors or evidence that would allow the Tribunal to not follow its general approach with respect to the argument that waiting for the conclusion of another process does not provide a good faith explanation for the delay in filing the Application. 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.

Was there a series of incidents?

25In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:

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?

26In Millien v. Toronto Police Services Board, 2012 HRTO 1034 at paragraph 13, the Tribunal discussed the meaning of “series of incidents” in the following terms:

In considering the meaning of the term “series of incidents” under s. 34(1) (b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457, at para. 25. The Tribunal has also held that there must at least be some connection or nexus between the incidents that are alleged to form the series, and that a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22.

27In general terms, there may be a connection or nexus between allegations of discrimination and a later reprisal for having complained about that discrimination, so that the alleged reprisal may be seen as the last in a series of incidents.

28If the allegations of discrimination occurred more than one year before the Application but the allegation of reprisal occurred within that year, the alleged reprisal could be the last of a series of events that would include the allegations of discrimination.

29However, in my view, in order for the Tribunal to have jurisdiction about incidents that would otherwise be untimely requires more than an allegation. To accept that an alleged incident is part of a series of events, there must be a reasonable prospect that the incident occurred and that, if it did, it can be established that it was an incident that infringed the applicant's Code-protected rights (see, for example, Saxon v. Amherstburg Police Services Board, 2013 HRTO 681).

30In this regard, there are two questions about the alleged conversation with Professor Arnold. The first is whether it occurred, and if it did, whether it occurred in the manner the applicant says it did. This arises because the respondents deny that the conversation took place.

31The second question is whether, if the conversation occurred, it was a reprisal within the meaning of section 8 of the Code.

32The alleged reprisal consists of an indication that Professor Nakhaie would publish a paper with the applicant about her work but only if she were to drop the complaint.

33As discussed at the hearing, there is a question as to whether the alleged conversation with Professor Arnold, if true, could constitute “reprisal” within the meaning of section 8 of the Code. Allegations of reprisal usually involve a retaliatory action or a threat of a retaliatory action. In this case, the alleged conversation seems to have involved an offer of beneficial treatment.

34I have concluded that further evidence and submission is required with respect to the reprisal allegation to address whether the alleged conversation occurred in the manner alleged by the applicant, and whether, if it did, it constitutes reprisal within in the meaning of section 8 of the Code.

The allegation relating to the applicant being denied re-admission

35The applicant applied for re-admission to the University in 2015 and that application was denied. The applicant alleges that this is another incident of reprisal as she alleges that a reason for not allowing her application for re-admission was that she made the complaint to the Office of Human Rights and filed the Application with this Tribunal.

36The applicant submitted a request to amend the Application to include this allegation. The respondents confirmed they do not object to the request, as it makes more sense to deal with it as part of the current Application rather than requiring the applicant to file a new Application.

37The respondent may file an amended Response in respect of the 2015 reprisal allegation. This should be filed with the Tribunal and copied to the applicant within 35 days of this Interim Decision.

Next steps

38The Registrar will schedule a one-day hearing in Windsor. At that time, I will hear evidence from the personal respondents and the applicant about the alleged conversation in July 2013 between the applicant and Professor Arnold. I will also hear evidence from the applicant and witnesses the respondents may wish to call in respect of the applicant’s application for re-admission to the University in 2015.

39I will hear submissions from the parties about whether the applicant has proved on a balance of probabilities that the July 2013 conversation took place in the way the applicant alleges and whether, if so, the conversation represents a reprisal within the meaning of section 8 of the Code.

40If I am satisfied that the conversation took place in the way the applicant alleges, and that it represents a reprisal within the meaning of section 8 of the Code, I will provide further direction about whether that conversation is the last in a series of incidents that includes the alleged discrimination that the applicant alleges occurred in December 2012 and earlier. The parties will not be expected to deal with the allegations about the alleged discrimination in December 2012 and earlier at the reconvened hearing.

41I will also hear submissions from the parties about whether the applicant has established that it is more probable than not that the decision to deny her re-admission in 2015 was a reprisal contrary to section 8, and, if so, what remedies are appropriate.

42I will also be available to assist the parties with further settlement discussions if the parties are interested in having such discussions.