Ernest Casely-Hayford v. Sheridan College Institute of Technology and Advanced Learning, 2016 HRTO 810

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ernest Casely-Hayford Applicant

-and-

Sheridan College Institute of Technology and Advanced Learning and Mary Louise Noce Respondents

DECISION

Adjudicator: Laurie Letheren Date: June 15, 2016 Citation: 2016 HRTO 810 Indexed as: Casely-Hayford v. Sheridan College Institute of Technology and Advanced Learning

APPEARANCES

Ernest Casely-Hayford, Applicant Isaac Owusu, Representative

Sheridan College Institute of Technology and Advanced Learning and Mary Louise Noce, Respondents Patricia Murray, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the receipt of services because of ancestry, place of origin, ethnic origin, gender expression and reprisal.

OVERVIEW

2In a Case Assessment Direction (CAD) issued on November 12, 2015 the Tribunal directed that a summary hearing be held pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application or part of the application will succeed. The CAD advised the applicant that during the summary hearing he would need to make submissions about why the Application should not be dismissed for having no reasonable prospect of success and would need to provide details of the evidence he intends to rely on to show the link between the respondents’ actions and the grounds of discrimination he has alleged.

3The summary hearing was held by teleconference. At the commencement of the summary hearing, I explained that the focus of the summary hearing was on the question of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. I invited the applicant to explain why he believes the respondents’ acts amount to discrimination under the Code.

4I heard submissions from the applicant’s representative and from counsel for the respondents.

THE FACTS

5For the purpose of a summary hearing, the Tribunal is to accept that the facts as alleged are true. The following summary of the facts is based on the allegations set out in the Application, the Response, the Reply and the submissions during the summary hearing.

6In the Application, the applicant identified himself as a Black male of African descent. The applicant was a student at the respondent College during the period of time that is relevant to his Application. He was enrolled in the Social Service Worker Program in the School of Community Studies.

7The individual respondent was the Associate Dean of the School of Community Studies.

8The applicant alleges that he experienced discrimination through the actions of the College’s academic and administrative staff.

Dropping Field Preparation Course

9The applicant alleges that he experienced discrimination when the professor for Field Preparation Course and the College’s academic advisor forced him to drop out of this course. He also claims that he was later given an F grade in this course. He alleges that the professor and academic advisor hid from him the fact that this course was a pre-requisite to a field placement. When I asked him if he had any evidence of whether any other students had been asked to drop the class, he responded, “No I don’t know if others did or were asked.”

10He claims that the discussion about dropping the course was raised too early by the professor and the academic advisor. It is his position that they should have waited until the 7th week of the course. He claims that waiting until the 7th week in this 8 week course would have been in accordance with a memo that had been issued by the Associate Dean in which she advised academic staff that those students who might be at risk of leaving the college are to be offered supports and services in the 7th week of the semester.

11He alleges that the professor for this course “made a mockery of him” and humiliated him. He alleges that she looked at him in the classroom and stated, “those who are pampered are going to be kicked out”. When asked if she explained what was meant by this, the applicant stated he had not asked. When asked if she had specifically mentioned him as one of the pampered, he said no. The applicant alleges that she had looked around the classroom when she stated this and that she looked straight at him.

12The applicant also alleges that the professor refused to accept his assignments in hand-written form. He did not claim that he had to have hand-written assignments as a disability-related accommodation but rather because he had a problem with technology. When asked if he had ever spoken to her about this, the applicant stated, “No she should have known”.

Comments Made and Grades Given by Professors

13The applicant alleges that in another course a professor told him that he should remain at his day job shredding papers as he did not know social service work. He also alleges that this professor and another discriminated against him when they gave him low marks of D and F in their courses.

14The applicant provided no further details and made no submissions about the evidence he has or may have to demonstrate that this comment and the marks he was given in these courses are linked to his ancestry, place of origin, ethnic origin, gender expression.

Associate Dean’s Review of Grades

15The applicant alleges that the Associate Dean refused to use the normal protocol and procedure used for other students and refused to allow him the opportunity to appeal his grades D and F.

16The applicant’s written submissions for the Summary Hearing included an email he received from the Associate Dean dated March 11, 2015. The opening line of this email is “I am writing to inform you of my decision regarding you academic appeal.” She informed him that she was denying the appeal based on lack of evidence of the alleged procedural error. She also advised him that he had recourse to a level 2 appeal and directed him to the policy that outlined the appeal process.

17The applicant did not outline any evidence that he had or would have at a hearing on the merits to demonstrate how the actions of the Associate Dean in this academic appeal process could be found to be a breach of the Code.

18The applicant also alleges in the Application that the Vice President of Academic Affairs promised to review the Associate Dean’s decision further but did not. The applicant did not provide any further details and made no submissions about this allegation. He did not outline any evidence that he had or would have at a hearing on the merits to demonstrate how the lack of action by the Vice President of Academic Affairs could be found to be a breach of the Code.

Name Dropped from School Roster

19One of the allegations in the Application is that the applicant’s name was dropped from the respondent College’s roster based on false pretenses that his grades were poor and that he had not attended class from January to April 2015. The applicant did not provide any further details about this allegation such as who made the decision and what evidence he had or would have at a hearing on the merits to demonstrate that he was removed from the roster because of his ancestry, place of origin, ethnic origin, gender expression or as a reprisal for attempting to enforce his rights under the Code.

Evaluation of a Professor

20The applicant claims that he experienced reprisal when he submitted an evaluation about a professor in August 2014. He claims that in the evaluation he described how some students and another professor were “ganging up” on the professor who was the subject of the evaluation. It is his allegation that since he did that some teachers and the Associate Dean have reprised against him. The applicant provided no further details or clarification about how the actions of the professors and the Associate Dean could be found to be reprisal against him for enforcing or attempting to enforce his rights under the Code or for refusing to infringe the rights of another person.

Cheques Received

21In April 2015 the applicant was sent a cheque payable to him and issued by the respondent College. He states that it was sent for no justifiable reason and that he was not provided an explanation why he received this cheque. He provided no further details about the cheque during the summary hearing nor did he point to any evidence he had or would have that could demonstrate that receiving these cheques could be found to be unfair treatment that is linked to his ancestry, place of origin, ethnic origin, gender expression or that it could found to be reprisal under the Code.

ANALYSIS

22Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

23In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

24I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

25Many of the incidents that the applicant alleges to be discriminatory actions are about marks he received, the process undertaken by the respondents when he asked for those marks to be appealed, and the subsequent removal of his name from the school roster. It may be that the applicant was not marked fairly in these courses and did not get a fair review but unless the applicant can point to some evidence that the unfairness was a result of the his ancestry, place of origin, ethnic origin, gender expression it cannot be found to be a Code breach. He has not provided any indication that he has any evidence to make that link.

26The applicant has provided nothing to demonstrate how he received unfair treatment as a result of the cheque that was issued by the College in April 2015. Even if he could demonstrate how this was unfair treatment, he has provided no indication of any evidence that he has or would have to demonstrate that he received the cheque as a result of his ancestry, place of origin, ethnic origin, gender expression or that the issuing of the cheque was an act of reprisal under the Code.

27The applicant is alleging that the respondents reprised against him after he completed the evaluation for the professor in which he revealed that this professor was being targeted. The applicant has provided no details of evidence that would demonstrate that the professor’s Code rights were being infringed and that by completing the evaluation form in this manner, he was refusing to infringe this professor’s rights. Again, the applicant may believe the treatment of this professor was unfair but he has not pointed to any evidence that could support, on a balance of probabilities, a finding that his Code rights were infringed in this alleged incident.

28The Tribunal does not have the general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds. (See Dabic, above.)

29The allegations that he was forced to drop the Field Preparation Course and that the professor for that course stated that “those who are pampered are going to be kicked out” are the only allegations for which he provided any explanation about the connection between these actions and comment, and his ancestry, place of origin, ethnic origin, or gender expression.

30During the summary hearing the applicant’s representative stated that because the applicant was the only Black African in the class, because this comment was made to him directly, and because he was the only student asked to drop the class, the inference might be drawn that his ancestry, place of origin, ethnic origin, or gender expression was a factor in these incidents. He pointed to nothing other than his own conclusion about these incidents.

31The applicant claims that he got an F in the Field Preparation Course. This would appear to indicate that he did not actually withdraw from the course. The respondents agree that, although he was advised of the academic and financial consequence of withdrawing, the applicant did not withdraw from the course. When I asked the applicant if he had evidence that any other students had been asked to drop the class, he responded, “No I don’t know if others did or were asked.” When asked whether the professor in the Field Preparation Course had used his name when making the comment about being pampered he stated that no, she had not. He did not point to any other evidence to demonstrate that he was the direct target of this comment or that even if he were the direct target, this comment was connected to his ancestry, place of origin, ethnic origin, or gender expression.

32The applicant has made no submission or pointed to any evidence that could connect any of his alleged allegation to the ground of gender expression.

33The applicant may sincerely believe that the respondents did not treat him fairly because of his ancestry, place of origin, ethnic origin, and gender expression. However, even if I accept all of the facts alleged by the applicant as true, he has not been able to point to any evidence beyond his own suspicions about the reasons why he was treated this way.

34As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at para. 25:

(…) discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground.

35In reaching this finding, I am cognizant that there is seldom direct evidence of a subjective intention to discriminate, because “[r]acial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices” and racial discrimination “often operates on an unconscious level. For this reason, discrimination is often proven by circumstantial evidence and inference.” See Shaw v. Phipps, 2012 ONCA 155 para 34-35.

36The applicant has not pointed to any circumstantial evidence that the Tribunal could possibly draw on to make the inference that his ancestry, place of origin, ethnic origin, or gender expression was a basis for the alleged unfair treatment.

37Having considered all the information before me, I find that there is no reasonable prospect that the Application will succeed and the Application is therefore dismissed.