Barksey v. Laurentian University, 2015 HRTO 814

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Curtis Barksey

Applicant

-and-

Laurentian University, Leigh MacEwan, Robert Kerr, Denis Mayer, Karen McCauley and Marie-Luce Garceau

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 17, 2015

Citation: 2015 HRTO 814

Indexed as: Barksey v. Laurentian University

WRITTEN SUBMISSIONS

Curtis Barksey, Applicant

Self-represented

Laurentian University, Leigh MacEwan, Robert Kerr, Denis Mayer, Karen McCauley and Marie-Luce Garceau, Respondent

Kathryn Bird, Counsel

1This is an Application filed on under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability, sex, gender identity, gender expression and reprisal in relation to the organizational respondent’s decision to remove the applicant from its Social Work Program. This Interim Decision addresses several Requests for an Order during Proceedings and four Requests for a Tribunal-Directed inquiry the applicant filed on April 30, 2015.

Request to Amend Remedies

2The applicant filed three Requests to amend, respectively, the financial, non-monetary and cost related remedies he seeks in this Application. The respondents consented to these Requests, without admission that the requested remedies are appropriate for the alleged violations of the Code and without prejudice to their position that the Application is without merit and ought to be dismissed. In light of the respondents’ consent, the Requests to amend the remedies sought by the applicant are granted.

Request for production of documents

3The applicant requested production of 20 categories of documents, organized into 20 paragraphs in the Request. The respondents responded to the Request and produced documents addressing the requests in several paragraphs (1, 10, 11, 13, 14(a)-14(n), 15, 18, 19 and 20). The respondents indicated that it has asked for clarification (paragraphs 3, 8 and 10) or consent (paragraph 6) in order to search for or disclose the documents in question. The respondents stated that they have produced all of the documents requested in paragraphs 16 and 18 and that no other such documents exist. The respondents confirmed that it has no statements or e-mail messages of the nature described in paragraph 7 and cannot respond to paragraph 8 due to a lack of specificity. The respondents oppose the Request with respect to the production requests made in paragraphs 2, 3, 5 and 14(o).

4I have no basis for questioning the respondents’ representations regarding paragraphs 7, 16 and 18 of the applicant’s Request. Paragraph 8 of the Request amounts to a bare assertion that the respondents have improperly withheld documents and does not identify documents the applicant would like to be disclosed. Accordingly, the applicant’s production requests set out in paragraphs 2, 3, 5, 14(o) and 17 are the only outstanding requests.

5In paragraph 2, the applicant requested disclosure of any police report, dated on or about March 22, 2012, associated with Karen McCauley’s incident report. In paragraph 3, the applicant request disclosure of a police report Incident (# SU-120242-962) regarding a conversation a police officer had with Ms. McCauley. The respondents submitted that these reports, if they exist, are in the possession and control of the police and that the respondents are unable to produce documents that are not in their power, possession or control.

6In paragraph 5, the applicant requested production of the redacted portions of e-mail messages the organizational respondent sent to him. The respondents submitted that it is not required to produce the redacted information because it is subject to solicitor-client privilege, as it contains communication between the organizational respondent’s personnel and the General Counsel of the respondent university.

7In paragraph 14(o), the applicant requested production of an attachment to an e-mail message dated June 22, 2014, apparently between two employees of the organizational respondent. The respondents submit that the e-mail message in question relates to the applicant’s proceeding before the Information and Privacy Commissioner and is not relevant to this proceeding. In paragraph 17, the applicant requests production of pages two and three of the same e-mail message, which he states was a three page message. I infer from this that the applicant has a copy of the first page.

Analysis and Decision

8At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.

9The requests set out in paragraphs 2, 3, 5 and 14(o) are dismissed. There is no reason to conclude that the police reports requested by the applicant are in the possession or control of the respondents and therefore there is no proper basis for ordering the respondents to produce them.

10Communications between the organizational respondent’s staff and the organizational respondent’s General Counsel are subject to solicitor-client privilege. The Tribunal has stated that this privilege is almost absolute and the Tribunal will rarely order the production of documents that are subject to solicitor-client privilege. See Singh v. University of Toronto, 2010 HRTO 1873. In any event, section 5.4 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”) provides:

(1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

1. (a) the exchange of documents;

2. (b) the oral or written examination of a party;

3. (c) the exchange of witness statements and reports of expert witnesses;

4. (d) the provision of particulars;

5. (e) any other form of disclosure.

(2) Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.

(Emphasis Added)

11Here, the redacted e-mail messages form part of an e-mail exchange regarding the collection of evidence in connection with the applicant’s internal appeal. Communications with counsel in this context are in my view subject to solicitor-client privilege and the request to produce the redacted messages described in paragraph 5 of the Request is denied.

12The applicant did not provide the portion of e-mail message apparently in his possession to which he referred in paragraphs 14(o) and 17 and, as a result, I have no basis for rejecting the respondents assertion that the subject of the message is related to his proceedings before the Information and Privacy Commissioner, in which case it not clear that they are relevant to this proceeding. Further, the application filed this Application in early February 2014 regarding incidents alleged to have occurred in 2013; therefore, it is difficult to see how an e-mail message sent in June 2014 could be arguably relevant to these proceedings. The request to produce these documents is denied.

Request to Add Chanelle Thivierge

13The applicant filed a Request to add Chanelle Thivierge as an individual respondent. Ms. Thivierge is an Admissions Clerk for the organizational respondent. The applicant alleges that Ms. Thivierge produced a false account of a telephone conversation he had with Ms. Thivierge when he called her office to obtain an appeal form. The applicant submitted that Ms. Thivierge intentionally created a fabricated account of their conversation to use against the applicant on the direction of Denis Mayer. The applicant speculated that, in fact, the respondents anticipated that he would call the Admissions Office and coached Ms. Thivierge to make false statement to the effect that the applicant acted in an aggressive and threatening manner. The applicant further speculated that Ms. Thivierge is cooperating or conspiring with a “criminal fascist feminist movement” to discredit him. The applicant submitted that Ms. Thivierge’s actions amount to fraud, libel, conspiracy constitute intended to inflict further human rights abuses upon him.

14The respondents oppose the request to add Ms. Thivierge as an individual respondent. The respondents submitted that the respondent university is vicariously liable for Ms. Thivierge’s alleged conduct, since she was acting within the scope of her employment with the university. The organizational respondent confirmed that it will assume full responsibility for the conduct of its employees and there is no issue regarding the university’s ability to respond to the Application or any remedy the Tribunal may award. The respondents submitted that there is no prejudice to the applicant if Ms. Thivierge does not become a respondent because she can be compelled to testify through a summons. The respondents submitted that there was no compelling reason for adding Ms. Thivierge as a respondent because her alleged conduct is not central or even tangential to the issues arising in this Application.

15In any event the respondent submitted that Ms. Thivierge’s alleged misconduct, i.e., improperly recording a telephone conversation, does not amount to a Code violation. The respondents submitted that the fact that a proposed respondent’s conduct may be found to have played a role in any discrimination is not a compelling reason for requiring him or her to continue as an individual respondent. See Persaud v. Toronto District School Board, 2008 HRTO 31. Accordingly, the respondents submitted that the fact that Ms. Thivierge’s may be found to played a role in any discrimination the Tribunal may find is not sufficient to include her as a personal respondent. The respondent’s further noted that the applicant does not seek any remedy from Ms. Thivierge and, as a result, there is no reason to add her as a personal respondent.

Analysis and Decision

16As noted in 2014 HRTO 1421, an earlier Interim Decision in this matter, the analysis the Tribunal applies regarding requests to add parties is set out in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

17The request is denied. The allegation levelled at Ms. Thivierge is that she intentionally falsified her account of her conversation with the applicant. Even assuming this allegation to be true, the alleged misconduct, while improper, does not necessarily amount to a violation of the Code, in itself. In any event, I find that there is no compelling reason to add Ms. Thivierge as an individual respondent. The organizational respondent is responsible for Ms. Thivierge’s conduct pursuant to section 46.3 of the Code and the organizational respondent has accepted this responsibility. Ms. Thivierge’s conduct is not the central issue in this Application and the applicant does not seek a remedy against her. The applicant may summons Ms. Thivierge to testify if the respondents do not undertake to present her as a witness; therefore, the respondent will suffer no prejudice if she is not added as a respondent. In these circumstances, I find that it is not appropriate to add Ms. Thivierge as a respondent.

The Request for Tribunal-Ordered Inquiries

18The applicant filed four requests for Tribunal-Ordered Inquiries respectively entitled as follows: “Inquiry into Corrupt LU Bureaucracy”, “Inquiry into Multiple Factors Associated with LU Corruption”, “Inquiry into Chain of Command”, “Inquiry into McCauley’s and MacEwan’s Writings and Teachings”. In each request, the applicant request an inquiry to ascertain a variety of information, summarized as follows:

Inquiry in Corrupt LU Bureaucracy:

1. How the organizational respondent files documents and information regarding complaints that faculty make about students and how the organizational respondent investigates complaints and applies disciplinary sanctions;

2. How, if at all, the organizational respondent provides students with information about its filing system and how they may get access to documents;

3. How the organizational respondent makes its policies available to students and the public;

4. Whether the organizational respondent uses the Freedom of Information and Protection of Privacy Act to deny students access to records;

5. Whether Lise Dutrisac, a Human Rights Advisor, failed in her obligations to assist the applicant;

6. Which faculty staff were involved in the decision to expel the applicant and an explanation for this decision, including the process followed in coming to this decision;

7. All university policies relevant to the applicant’s situation and a description of these policies;

8. Demographic information about students who have been expelled; and,

9. Data regarding the number of complaints that have been made against students, including information regarding the outcome of the complaints

Inquiry into Multiple Factors Associated with LU Corruption:

1. What Leigh MacEwan and Karen McCauley said about the applicant to their students;

2. What was said about the applicant at the Anglophone Stream Meeting on January 23, 2013, including the discussion leading to the decision to expel the applicant;

3. Information regarding a “Task Force” to create methods and policies to deal with situations similar to those involving the applicant that was discussed at the Anglophone Stream Meeting;

4. What faculty members Rego, Bauer, Kusan and Lepage said about the applicant;

5. What the repeated references by personnel of the organizational respondent that the applicant is mentally unwell mean;

6. Whether the respondents’ keep a list of “undesirable people”;

7. Whether the door to the classroom of a class attended by the applicant was working properly;

8. An investigation into the “Racer” website; and,

9. Whether members of the social work faculty have any connection to psychiatric facilities in the Sudbury area to determine whether there is a conspiracy between the School of Social work and psychiatric practitioners.

Inquiry into McCauley’s and MacEwen’s Writings and Teachings

1. Ms. McCauley’s and Ms. MacEwen’s public and personal views and teachings regarding human rights, men’s rights and women’s rights, including their published and unpublished work; and,

2. Ms. McCauley’s and Ms. MacEwen’s involvement in community or human rights organizations, including an investigation into the actions of the organizations.

Inquiry into Chain of Command

1. The actions taken by the organizational respondent’s personnel that leading to the decision to expel the applicant, including all written and verbal communications about the applicant in connection with his expulsion

2. Whether the organizational respondent’s personnel failed to follow the university’s policies and disregarded the applicant’s rights, interests and well-being; and,

3. Documents indicating the “chain of command” within the organizational respondent, including information regarding supervisory, managerial or disciplinary roles.

19The respondents submitted that in some respects the applicant’s requests are for information and details that will be subject to evaluation and productions through the usual Tribunal processes, including presentation of evidence at the hearing. In other respects, the respondents submit that the information the applicant seeks is outside the scope of this Application, i.e., it is irrelevant.

20The respondents submitted that some of the applicant’s requests amount to a request that the Tribunal conduct a hearing into the issues arising in this Application, which is unnecessary, since a merits hearing has already been scheduled in this matter. The respondents submitted that a generalized inquiry into the respondent university’s record keeping system is not relevant to the issue in dispute in this Application, i.e., whether the respondent discriminated against the applicant contrary to the Code. To the extent that the organizational respondent’s record keeping system is relevant to the issues arising in this matter, the respondents submitted that the applicant may question their witnesses during the hearing. Similarly, the respondents submitted that the individual respondents’ views about human rights, “men’s rights” and “women’s rights” and any academic views they may have expressed on these subjects does not appear to be relevant to the issues in the Application. In any event, the respondents’ submitted that the applicant may question the individual respondents when they testify.

21The respondents also submitted that inquiries into third parties, such as the “Racer” website and the psychiatry field in Sudbury, goes beyond the scope of the Tribunal. The respondents submitted that it is not clear how these third parties are related to the expulsion of the applicant or how any information about them would be probative of the issues before the Tribunal in this matter. Similarly, the respondents submit that the demographic information the applicant seeks regarding expelled students would not be probative to the issue of whether the applicant was the subject of discrimination.

Analysis and Decision

22The authority to for the Tribunal to order an inquiry is set out in section 44(1) of the Code and states as follows:

At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,

(a) an inquiry is required in order to obtain evidence;

(b) the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and

(c) it is appropriate to do so in the circumstances.

Rule 20.2 provides in part as follows:

A Request for a Tribunal-Ordered Inquiry under Rule 20.1 must:

a) Describe the evidence or nature of the evidence to be obtained;

b) Explain why the evidence is necessary to achieve a fair, just and expeditious resolution of the Application;

c) Describe the efforts already made to obtain the evidence; and,

d) Propose terms of reference for the inquiry

23The Tribunal has yet to exercise its authority under section 44 of the Code and has stated that a Tribunal-ordered inquiry will be neither a routine event and nor a substitute for the usual production process contemplated by the Rules. As the parties are aware, they are required to produce all arguably relevant documents in their possession. If the parties cannot agree, or if one party has reason to believe that there are documents in the possession of a party or other person that have not been produced, the Tribunal has the authority to order the production of materials. See: White v. University of Ottawa, 2009 HRTO 1057 and Campbell v. Toronto District School Board, 2010 HRTO 783.

24In this case, there is no basis for concluding that the Tribunal’s normal production processes are inadequate. As noted above, the applicant filed a request for production of documents and the respondents provided the applicant with many of the requested documents and are in the process of clarifying several of his other requests. In any event, it does appear that much of the information the applicant sought through Tribunal-Ordered Inquiries is at the heart of the issues arising in this Application, i.e., whether the decision to expel the applicant violated his Code rights. In this regard, how and why the respondents decided to expel the applicant, anything said about the applicant and the policies and practices applied by the respondents regarding the decision to expel the applicant or in the internal appeals process are all pertinent issues and may be explored during the hearing. In my view, the other information the applicant sought through an inquiry is of no apparent relevance to this Application, including the Ms. McCauley’s and Ms. MacEwen’s participation in community/human rights organizations; Ms. McCauley’s and Ms. MacEwen’s views on human rights, men’s rights and women’s rights in general; the respondent university’s recording keeping practices in general; information about complaints about other students; demographic information about expelled students; the “Racer” website, and, whether there is any connection between the respondents and psychiatric practitioners in the Sudbury area.

25For these reasons, the Requests for Tribunal-Ordered Inquiries are denied.

Request to Amend Section 8 of the Application

26The applicant filed a Request to Amend Section 8 “What Happened” in his Application by adding evidence included in two affidavits sworn by the applicant on April 13, 2015 (which the applicant refers to as the “March 25, 2015 affidavit”) and April 23, 2015 (which the applicant refers to as the “April 22, 2015 affidavit”), respectively. The affidavits are extensive, consisting of over 600 pages between them. The applicant submitted that he wished to add evidence that he had obtained as a result of his Information and Privacy Commissioner Appeal.

27The respondents oppose this request on the basis that the affidavits amount to a restatement and reiteration of the facts that form part of the Application and that it appears that the majority of the affidavit is related to the applicant's submissions with respect to the alleged facts. Consequently, the respondents submitted that the affidavits do not contain new allegations; therefore, amendment of the Application is unnecessary. The respondents also submitted that the affidavits contain commentary about subjects outside the scope of the Application, including the applicant’s proceedings before the Information and Privacy Commissioner, the academic theories of the Feminist movement and the academic and practical application of Social Work, which should not be added to the Application.

Analysis and Decision

28It is common for parties to obtain evidence after applications, responses or replies are filed, through their own efforts or as a result of the disclosure obligations set out in Rule 16 of the Tribunal’s Rules. It is not necessary to add this evidence to an application. Rather, the parties are required to identify the documents they intend to rely upon and the testimony they expect their witnesses shall give, pursuant to Rules 16 and 17. The actual evidence is presented during the hearing through testimony and documents. The majority of the applicant’s affidavits consist of his arguments and commentary about several aspects of this matter, including several of the documents created by the respondents related to the decision to expel the applicant and the applicant’s attempts to appeal that decision. First, the affidavits do not raise any new allegations of Code violations that would require an amendment. Rather, they address – for the most part – issues that are already before the Tribunal. Second, the applicant’s arguments and commentary – most of the affidavits – are not evidence. As noted in the Cases Assessment Direction dated December 8, 2014 the appropriate time to “argue the case” comes during the hearing after the parties enter all of their evidence through testimony, documents etc. Third, some of the subject matter covered in the affidavits, including the applicant’s views of Ms. McCauley’s academic views and his proceedings before the Information and Privacy Commission do appear to be outside the scope of this proceeding. In my view, there is no proper basis for adding these affidavits to the Application.

29As noted above, the applicant will have a full opportunity to give his evidence about the events in question in this Application and also to cross-examine the respondents regarding their actions and the documents they created in connection with his expulsion and appeal.

Request to Amend Part 1-C of the Application

30The applicant also filed a Request to Amend Part 1-C of his Application, which is the part of an application where an applicant answers a number of questions regarding his or her allegations of discrimination in the areas of goods, services and facilities. The applicant did not actually set out the amendments he wishes to make to his answers to the questions in Part 1-C and submitted that the details are too numerous and complex for him to describe. Instead, the applicant invited the Tribunal to refer to a Request to Amend dated August 25, 2014 (filed August 27, 2014) and to his affidavits of March 22, 2015 and April 22, 2015, which contain all of the details of the discrimination he experienced. The applicant provided an overview of the affidavits to indicate the type of details he wished to add to Part 1-C.

31The respondent did not respond to this Request, but I find it appropriate to dismiss it in any event. First, it is not the Tribunal’s function to parse a request to amend to determine what it is the applicant wants added to the Application. Second, in a Case Assessment Direction dated September 24, 2014, the Tribunal found his request of August 25, 2014 was not a proper request because it was unreasonably long and not clear about the amendments he was seeking. The Tribunal’s assessment of that request has not changed. Third, for the reasons set out above, I have found that there is no basis for adding the applicant’s affidavits to this Application.

Request to Amend Sections 16 and 18 of the Application

32The applicant filed a Request to Amend Section 16 and 18 of his Application, “Important Documents You Have” and “Important Documents Another Person or Organization Has”. The applicant submitted that he has obtained more documents as a result of his IPC appeal of his FIPPA Access Request for Personal Records at Laurentian University and wishes to update section 16 of his Application. As was pointed out in the Case Assessment Direction of December 8, 2014, it is unnecessary to update this section, as section 16 addresses disclosure of documents at the hearing stage of an application.

33The request to amend section 18 of the Application is in fact a request for production and repeats, verbatim, the request for production addressed above in paragraphs 3 – 12.

Request to add respondent’s counsel to the Application

34On May 20, 2015, the applicant filed a Request to add Kathryn Bird, the respondents’ lawyer, to the Application as a respondent. The respondents did not respond to this this Request, but there is no basis for adding Ms. Bird to the Application. The Code applies only to certain social areas and, as a result, the Tribunal does not have jurisdiction over all interactions between individuals. The Tribunal has stated on several occasions that a lawyer, such as Ms. Bird, and an opposing party, such as the applicant, do not have a service relationship and therefore their interactions are not covered by the Code. See Mauch v. Golding, 2014 HRTO 1601. This is sufficient to dispose of this Request, but I also note that the applicant sought to add Ms. Bird as a respondent because he alleges that she committed certain torts, e.g. fraud and negligence, against him. In my view, there is no merit to these allegations, but the Tribunal’s jurisdiction is, in any event, limited to determining whether the Code has been violated and common law torts do not come within that jurisdiction. Accordingly, even apart from the fact that there is no service relationship, the applicant’s allegations would not be a proper basis for adding Ms. Bird to the Application.

Request for Students’ Contact Information

35The applicant seeks the contact information for the students enrolled in three classes the applicant attended at the respondent university: Critical Issues in Social Work and Practice, Political Economy of Social Welfare and Social Work in Groups. The applicant attended the Critical Issues in Social Work class briefly in January 2013. Individual respondent MacEwan taught this course and there is no dispute that an incident involving the applicant during a class on January 16, 2014 led to the organizational respondent’s decision to expel the applicant. The applicant states that he was a student in the Political Economy of Social Welfare, taught by individual respondent McCauley in 2012. The respondents state in their Response that he was a student in this course in the fall of 2011 and was a student in Human Services Organizations in the Winter of 2012, also taught by Ms. McCauley. The applicant referred to his allegations in the Application at section C29 regarding the Political Economy of Social Welfare course. In section C29, the applicant stated that he assumed that an incident in the Political Economy of Social Welfare in which he voiced opinions that appeared to anger Ms. McCauley caused the respondents to commit a reprisal against him. The applicant did not state what the connection is between the Social Work in Groups course (which was taught by a professor who in not a party to these proceedings) and this Application. The applicant wants the students’ contact information in order to serve summonses on potential witnesses.

36The applicant submitted that the organizational respondent banned him from campus immediately after he was expelled and removed his access to the respondent university’s internal electronic communication service. The applicant submitted that he was prevented from collecting evidence or witness statements from other students to support his case. The applicant submitted that the only way for the applicant to receive this information is for the Tribunal to order its production, as the Information and Privacy Commission is unlikely to provide it to him.

37The respondents’ oppose this Request. The respondents submitted that the students in the applicant’s classes are not parties to this litigation and have not consented to the disclosure of their personal information and were not advised that their contact information could be disclosed in litigation before the Tribunal. The respondents submitted that they are under no obligation in assisting the applicant in creating list or in his search for evidence to support his case in this proceeding. The respondents submitted that the applicant is seeking to create his case, not obtain arguably relevant information.

38The respondents submitted that, even assuming the potential evidence of other students is arguably relevant, the probative value of this evidence is outweighed by the prejudice to the privacy interests of the students.

Analysis and Decision

39As noted above, the Tribunal will generally order disclosure of arguably relevant information, unless the documents are privileged or raise privacy concerns, see McKay, above. As the respondent noted, the Tribunal will also weigh the likely probative value of potential evidence against the prejudice to privacy concerns. See Cohen v. Law School Admission Council, 2013 HRTO 899, King v. Toronto Police Services Board, 2008 HRTO 33

40In my view, the probative value of the evidence the applicant seeks to obtain from other students is limited. The central issue in this matter is of course whether the decision to expel the applicant violated the applicant’s Code rights, which, among other things, requires an evaluation of whether the decision was connected to any of the Code ground upon which the applicant relies. The disposition of this issue will therefore in large part depend on analysis of the respondents’ reasons for expelling the applicant. Students in the Critical Issues in Social Work and Practice may have witnessed the incident on January 16, 2013. Evidence of the incident would, in my view, be arguably relevant but would not likely assist in determining whether the applicant’s disabilities or perceived disabilities, gender etc., were a factor in the expulsion decision. In these circumstances, the probative value of the evidence the applicant seeks to obtain does is outweighed by the prejudice to the students’ privacy that would result from a forced disclosure of their contact information.

41To establish reprisal, the applicant must prove that the respondents’ actions were intended to retaliate against him for asserting or claiming his human rights. See Noble v. York University, 2010 HRTO 878 at paragraphs 29-35. To begin with, it is not clear that the applicant’s allegations at section C29 of the Application assert that the respondents retaliated against him because he asserted his rights under the Code. In any event, the key evidence in a reprisal claim is the evidence that establishes intent to retaliate. The students in the Political Economy of Social Welfare may be able provide evidence of a disagreement between the applicant and professor McCauley, which does not appear to have been about the applicant’s human rights. There is no indication that these students could give any evidence relevant to the elements required to establish reprisal. In these circumstances, I find that it is not appropriate to order production of the students’ contact information.

42The applicant has not identified any evidence that the students in the Social Work in Groups may have in connection with this Application. Accordingly, there is no proper basis for requiring disclosure of their contact information.

Request to Extend Deadlines

43In connection with his request for the contact information of potential witnesses, the applicant requested an extension to the date on which he was required to file and deliver witness statements, pursuant to Rule 17.2. The deadline for providing witness statements was set at May 25, 2015, but the applicant submitted that he would need additional time to contact the witnesses and produce witness statements and also submitted that the hearing, scheduled for July 8, 9 and 10, 2015, may have to be rescheduled. The respondents consented to the extension request regarding witness statements, provided they are also afforded an extension of the deadline.

44This Request is moot in light of my ruling denying the applicant’s request for contact information. The parties shall file and deliver their witness lists and witness statements by the end of business on June 26, 2015.

Order

45The Tribunal orders as follows:

1. The requests to amend the financial, non-monetary and cost related remedies are granted;

2. The request to produce documents described in paragraphs 2, 3, 5 and 14(o) of the request for production of documents is denied;

3. The requests to add Ms. Thivierge and Ms. Bird as individual respondents to the Application are denied;

4. The requests for Tribunal-Ordered Inquiries are denied;

5. The request to amend section 8 of the Application is denied;

6. The request to amend Part 1-C of the Application is denied;

7. The request to amend sections 16 and 18 are denied;

8. The request for students’ contact information is denied; and,

9. The parties shall file their witness lists and witness statements by the end of business on June 26, 2015.

Dated at Toronto, this 17th day of June, 2015.

“Signed by”

Douglas Sanderson

Vice-chair

CORRECTION

The decision released on June 17, 2015 incorrectly stated the citation as “2014 HRTO 814” instead of “2015 HRTO 814”. This error has been corrected.