HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rigaud Bastien
Applicant
-and-
York University
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Bastien v. York University
APPEARANCES
Rigaud Bastien, Applicant
Self-represented
York University, Respondent
Joanna S. Rainbow, Counsel
1This Application alleges discrimination with respect to educational services because of sexual orientation, race and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
What this Application is about
2The Application which was self-drafted by the applicant alleges the following:
a. That he was not permitted to apply for various bursaries throughout his education;
b. That the applicant met with someone on May 7, 2013 and that he sought assistance for a mental health disability, to receive therapy for psychological and physiological needs, and to sign papers to obtain a disability bursary through OSAP and that he was refused these;
c. That on September 12, 2013 he attended the financial aid office to fill out some papers for OSAP and that by September 19, 2013, the respondent’s employees still had not sent these documents to OSAP and that these had to be photocopied by him again; and,
d. The applicant called OSAP on November 26, 2013 and that they still had not received these documents.
3At the hearing the applicant substantially expanded the allegations in the Application. The applicant never sought to amend the Application to include any new allegations. This included allegations of reprisal after he filed the Application because York University has allegedly been improperly communicating with other agencies and has breached confidentiality. After hearing the applicant’s allegations, I ruled that the applicant could not expand the Application to include new allegations not contained therein.
4Rule 5.7 states:
Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.
5I was of the view that to permit the applicant and require the respondent to respond to these new allegations would have required that the hearing be adjourned and this would have unduly delayed the proceeding.
6Further, I was of the view that many of the applicant’s allegations related to general perceptions of unfairness and were unrelated to the service relationship between the parties, which I note ended in September of 2013 when the applicant ceased to be enrolled at York University.
7After hearing the applicant’s submissions I found that the only allegation that fell within the jurisdiction of the Tribunal and that had any reasonable prospect of success was whether the University failed to accommodate the applicant’s disability. With respect to the issue of the applicant’s unsuccessful efforts to obtain bursaries (I note that the applicant did in fact receive one in August 2013 from the University for about $380.00 dollars which the applicant says is not enough money) there was simply no evidence to support the applicant’s theory that this was due to any prohibited ground. Though the applicant takes the position that he was successful in his previous education and submitted many diplomas in support of his position, it remains uncontested that during his short enrollment in the winter and summer terms of 2013 that he did not successfully pass one course at York University. Therefore, I find that all of the other allegations are general allegations of unfairness and discontentment with no factual underpinnings to support a finding that the Code had been breached.
8At the hearing, I ruled that in my view the only allegation that fell within the jurisdiction of the Tribunal and that shouldn’t be dismissed for no reasonable prospect of success on its face was whether York University failed to accommodate the applicant’s disability. I directed the applicant to call evidence on this issue.
Issues with respect to the Authenticity of Medical Records presented by the Applicant and Conduct of the Hearing
9Prior to the hearing the respondent wrote to the Tribunal to advise that there were some concerns with respect to the authenticity of a medical report authored by Dr. Ryan Korda on May 31, 2013 (the “Report”). It appears that the Report was submitted by the applicant to York University in support of his request for accommodations and for an OSAP disability bursary. York University contacted Dr. Korda to authenticate the Report during the course of preparing for the hearing because there appeared to be some white out on the original. Dr. Korda refused to authenticate the Report because the applicant was refusing to give him consent to do so. The respondent summonsed Dr. Korda to the hearing.
10Prior to and at the beginning of the hearing the applicant objected that Dr. Korda be permitted to give any evidence. I explained to the applicant that the only remaining issues before the Tribunal were whether the applicant had a disability; whether he required accommodation for his disability; and, whether York University breached its duty to accommodate the applicant to the point of undue hardship. I explained to the applicant that it was his onus to establish that he had a disability and that he requested accommodation from York University. In order to establish this, the applicant had to call medical evidence to support his assertion that he has a disability. The applicant was relying on two documents prepared by Dr. Korda, one dated February 4, 2013 and the other was the Report. I explained to the applicant that this was hearsay evidence and that I would not accept this evidence without the testimony of Dr. Korda, especially in circumstances in which Dr. Korda was not able to authenticate the document. I advised the applicant that if he did not call Dr. Korda that I would be seeking submissions on whether the entire Application should be dismissed on the basis that it had no reasonable prospect of success.
11It was agreed that Dr. Korda would testify by telephone and arrangements were made so that Dr. Korda could fax documents in his file to the Tribunal so that he could be questioned without having to cancel his patient appointments for the day.
12After hearing the applicant’s evidence in-chief, the respondent’s counsel started her cross-examination, which was interrupted so that Dr. Korda could testify by telephone. After Dr. Korda’s testimony, I directed and permitted the applicant to testify to address the discrepancy between his testimony and that of Dr. Korda’s. After this, I directed the parties to make submissions on whether the applicant had proven on a balance of probabilities a prima facie case of discrimination.
The Evidence
13The applicant was enrolled at the University of York in the winter and summer terms of 2013. He did not successfully pass a course. The applicant explained that he was denied physiotherapy services and psychological services. He says that he needed money to support his daughter and for medical prescriptions. The applicant applied for and received OSAP for his two terms at York University. My understanding of the applicant’s testimony was that his OSAP payments went first to York University where tuition was deducted and then the balance was remitted to him. He testified that he unsuccessfully sought to have the entire OSAP payments go to him directly.
14The applicant testified that he always had academic success in the past, having obtained a number of degrees from schools, a number of which he sent to York University in support of his request to be admitted. This according to the applicant was the only time in his educational career that he had any difficulties in his academic endeavours.
15The applicant testified that he advised York University that he was not well and that he required accommodation. He said that he obtained a letter from Dr. Korda dated February 4, 2013, which the applicant states was to prove to York University that he required accommodation. In this letter Dr. Korda explains that he has had two meetings with the applicant in September 2012 and that he had not seen him since then. Dr. Korda explained that one of these meetings was related to the applicant’s mental health issues, including that the applicant may be suffering from post-traumatic stress disorder. The applicant states that York University gave him a form to be completed by a physician.
16The applicant’s evidence is that he brought this form to Dr. Korda on May 29, 2013. Dr. Korda completed the form but indicated that the disability was “temporary” (this is the “Report” referred to above). The applicant says that when he brought the Report to York University, he was told that he would not qualify for the OSAP disability bursary because he was not permanently disabled. The applicant returned to Dr. Korda to discuss the Report. The applicant said that he threatened Dr. Korda with a complaint because his disability was in fact permanent because it was reoccurring since 2005. He says that Dr. Korda changed the Report on May 31, 2013 to indicate that the disability was permanent. The applicant testified that he brought the Report to York University the same day, May 31, 2013. The applicant was hoping that he could obtain this additional funding so that he could pay for medication and support his daughter. He also said that he wanted to be provided a lap-top. At the hearing, for the first time, (this allegation is not mentioned anywhere in the Application or in any other document) the applicant asserted that he asked for the assistance of a note taker and educational assistant.
17There is no dispute that the applicant was denied any further funding for his disability by the government because it found that the applicant had failed to disclose his previous income when he applied for OSAP. OSAP determined that he had to repay the amounts paid to him and that he would be further disqualified from OSAP funding for five years. The applicant blames the University for being slow in assisting with the appeals of this OSAP decision. Ultimately, the applicant ceased being enrolled at York University in September 2013 as he had no longer any means to pay for his education because of the OSAP denial and because he had not passed one course.
18During cross-examination the applicant was asked to explain the discrepancy between his evidence-in-chief and his witness statement which was sent to the Tribunal on October 26, 2015. In the witness statement, the applicant stated that he brought the Report to the respondent on June 4, 2013 at 13:00 and not on May 31, 2015 as he was now asserting. The witness statement also states that he went back to Dr. Korda the same day and Dr. Korda changed the Report to indicate that the disability was permanent. The applicant stated that he brought back the Report on June 4, 2013 at 15:40. The applicant explained that after he filed his witness statement he reviewed his notes and records and came to the conclusion that he had been wrong. When counsel asked why he did not disclose his notes and records he stated that he destroyed those a long, long time ago.
19Dr. Korda testified that he met with the applicant twice in September 2012 and then on May 29th and 31st, 2013. He denied having any other appointments with the applicant between these dates. He stated that he received a letter from the applicant’s legal representatives seeking information from him with respect to any lasting effects of an automobile accident that the applicant had in 2005. He responded to this letter on February 4, 2013.
20Dr. Korda testified that to the best of his recollection, he met with the applicant on May 29, 2013. He stated that on longer forms he often does not have the time to complete the required information. He believes that he met with the applicant on May 31, 2013 to give him the completed Report. He testified that he had no other appointment with the applicant until August 23, 2013.
21Dr. Korda testified that he indicated on the Report that the applicant had a temporary disability. He said that he never changed the Report to indicate that the applicant had a permanent disability. He said that he does not put “white out” on medical forms but that if there are any corrections to the form he will strike it out by hand, make the correction and sign his initials next to the change. For example the date on the Report, which had been completed by the applicant, indicated that it was the 28th of May 2013. Dr. Korda struck out the 28th, and inserted the 31st and put his initials next to this change. It is because of this date change that Dr. Korda is certain that he gave this medical form to the applicant on May 31, 2013.
22Dr. Korda testified that he received a letter from York University asking him to authenticate this Report because there was white out on the Report where it had been indicated that the disability was temporary. Dr. Korda reviewed his medical records and found that this did not correspond with the Report that he retained on file. He says that he called the applicant on November 6, 2015 to discuss why the Report had been changed. Dr. Korda testified that the applicant gave contradictory explanations. At first, the applicant denied making this change then in subsequent conversation on November 9, 2015 the applicant told Dr. Korda that he did make the change because he did not agree with his assessment that the disability was temporary in nature. He then suggested that Dr. Korda had given him permission to change the Report if he did not agree with anything in it. Later when he met with Dr. Korda on November 30, 2015, to pick-up copies of his entire medical file, he told Dr. Korda that he did not make the change.
23I permitted the applicant to respond to Dr. Korda’s evidence of the contradictory statements made by the applicant to him in November 2015. The applicant testified that he told Dr. Korda on November 9, 2015, that he may have changed the Report. But then after reviewing his notes and records he told Dr. Korda on November 30, 2015 that he had not changed the Report. The applicant testified that in the past doctors had given him permission to change things on medical notes if he did not agree with them. However, he stated that he did not change the Report.
24The applicant also testified that Dr. Korda was wrong and that he had numerous appointments with him from September 2012 to May 29, 2013. This included at least one appointment with Dr. Korda in January 2013.
The Law
25The applicant bears the onus of proving on a balance of probabilities that he was afflicted by a disability in May 2013 when he sought accommodation and that he required accommodation for his disability. See: Tang v. McMaster University, 2014 HRTO 92 and the Reconsideration Decision, 2015 HRTO 551.
26In this case, I have had to make a number of credibility findings and I have considered the decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) where the British Columbia Court of Appeal states at page 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
27I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
28For the reasons that follow, the Application is dismissed as the applicant has not proven on the balance of probabilities that he has a disability that required to be accommodated by York University during the course of his enrollment in the winter and summer terms of 2013.
Did the applicant have a disability in May 2013
29The applicant bears the onus of establishing on a balance of probabilities, through clear and convincing evidence that he had a disability during the relevant time period. The applicant relied on two documents prepared by Dr. Korda, the first is a letter dated February 4, 2013 and the second is the Report. Usually, when parties tender documents to the Tribunal as evidence they are vouching for their veracity, authenticity and truth. In this case, however, the applicant takes the position that the two documents prepared by Dr. Korda suffer many deficiencies as will be detailed below. The applicant is impeaching the credibility and reliability of the documents prepared by Dr. Korda and his evidence. This is problematic for the applicant because he is also seeking to rely on these documents to prove his case. The Tribunal will therefore have to assess the credibility and reliability of the applicant and Dr. Korda’s evidence.
30During his testimony Dr. Korda stated that his assessment of the applicant’s mental health issues was based solely on the applicant’s statements to him. Dr. Korda spoke with the applicant for approximately 40 minutes in September 2012. Dr. Korda made no objective observations with respect to the applicant’s mental health issues. In the February 4, 2013 letter, which was prepared in response to a request by the applicant’s solicitors in regard to the preparation of an unrelated claim with respect to an automobile accident in 2005, Dr. Korda recounts that the applicant had “dropped out of school many times secondary to decreased concentration and decreased energy (2005, 2009, 2011, and 2012)”. This information is contrary to the evidence presented by the applicant that he never had any scholastic issues in the past and that he in fact received degrees in 2004, 2006 and 2009. The applicant stated that perhaps Dr. Korda had misinterpreted what he said which was that he dropped a few courses but then eventually obtained his degrees. Dr. Korda however testified that he was not advised by the applicant that he received degrees during this time period. The letter goes on to state that he was prescribing the applicant some medication, blood tests (which the applicant never obtained) and that the applicant should try to exercise and come back to see him in two weeks to see if the medication was working. I note that this letter does not indicate that the applicant requires any accommodation from York University, indeed this letter was not prepared to assist the applicant with obtaining any accommodations.
31The Tribunal must determine whether the applicant falsified the Report by modifying it to reflect that he had a permanent as opposed to a temporary disability. I find on a balance of probabilities that the applicant did falsify the Report for the reasons that follow.
32Dr. Korda has absolutely nothing to gain by lying to this Tribunal and I accept his evidence. On the other hand, the applicant has already demonstrated a propensity to give evidence which is favourable to him and which is not true. This includes his sharply contrasting accounts of his academic history at different times to different parties. He made repeated statements and gave evidence to the Tribunal, where it suited his purpose, that he never had any scholastic difficulties before he attended York University. Yet I accept Dr. Korda’s evidence that he was told by the applicant that he had dropped out of school numerous times in the past. Assuming the evidence before the Tribunal regarding his academic history was not falsified, as I found was the case with Dr. Korda’s Report, then at minimum the applicant seriously mislead Dr. Korda with a self-serving and selective account of his academic history and never sought to correct Dr. Korda’s reasonable belief that he had a poor academic history (based on the information he was provided by the applicant) or to clarify that he had obtained a number of degrees.
33Of significance to the Tribunal is that the applicant gave evidence which was inconsistent with his will-say statement filed in advance of the hearing. In this document, the applicant asserts that he obtained the Report on June 4th, 2013, and includes great details and exact times that he met with various people, and not May 31, 2013 as he testified to at the hearing. When he was asked to explain this previous inconsistent statement, the applicant testified that he had reviewed his notes and records. However, this is not credible because the applicant also testified that he did not disclose these records because they had been destroyed a “long, long time ago” (I note that he stated this despite also seeking to explicitly rely on the existence of these notes after filing his application).
34Having considered the evidence, I find that the applicant only changed this evidence after it came to light that he was being accused of modifying the Report and in fact there was no further appointment with Dr. Korda between May 31, 2013 and August 2013. This was after the applicant had submitted his witness statement to the Tribunal.
35Further, I note that the portions filled out by the applicant in the Report are in black ink. All of Dr. Korda’s comments are in blue ink, including the portion where he strikes out the date and makes changes next to his initials. The mark ticking off that the disability is permanent, is in black ink which is consistent with the ink used by the applicant but not Dr. Korda. It is highly improbable that Dr. Korda would use a different pen to make that specific change. I also note that it was the opinion of Dr. Korda at the time that the applicant had a temporary disability, I do not accept that he would quickly change his opinion without making a note of it in his records. I also accept his testimony that he would not put white-out on a medical record but would instead strike the change and put his initials. This is consistent with how he made changes with respect to the date of the Report.
36In examining the motives of the witnesses, I also note that the applicant throughout this proceeding and during his evidence it was very clear that he needed money in order to pay his bills. I find that the applicant had a motive to change this document so that he could obtain an OSAP disability bursary, and indeed receive a higher amount if he was found to be permanently disabled.
37I find that there is no evidence that the applicant was a person with a disability at the material times. I have found that the applicant falsified the report. To the extent that the Report might have supported the conclusion that he was a person with a disability, I find that it does not do so because the applicant has demonstrated a propensity to lie and because the report and the February 4, 2013 letter where based solely on the applicant’s statements to Dr. Korda. This evidence is unreliable because it is more likely than not that the applicant gave misinformation to the doctor with respect to his symptoms and previous history as discussed above. Further, the applicant behaved in a fashion that demonstrated that he did not have a disability at the relevant time, including by not consulting with Dr. Korda after September 2012 or following up with him. I do not accept that he saw Dr. Korda repeatedly during this time. In the February 4, 2013 letter Dr. Korda writes that “I have seen Mr. Bastien two times (September 12th 2012 and September 19th 2012). The letter also states that the applicant never followed up with Dr. Korda. I asked the applicant, who was taking the position that he had met with Dr. Korda many times, including at least once in January 2013, why he did not contact Dr. Korda or his lawyers to correct the statements in the letter. The applicant said that he was not in a state at the time to deal with this issue. However, I do not accept that the applicant would not challenge these alleged errors in Dr. Korda’s letter at the relevant time.
38For the foregoing reasons, I do not accept that the applicant had a disability at the material time. The documentary evidence submitted by the applicant has been falsified. Further, the doctor relied on statements made by the applicant who I have found to be without any credibility and as such his opinions as reflected in the two documents are therefore unreliable. In these circumstances, the applicant has not made out a prima facie case of discrimination on the basis of his disability. As such, the Application is dismissed.
Dated at Toronto, this 5th day of January, 2016.
“Signed By”
Geneviève Debané
Vice-chair