Steven Dolinar v. University of Waterloo and John Burbidge, 2017 HRTO 1671

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Dolinar Applicant

-and-

University of Waterloo and John Burbidge Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: December 18, 2017 Citation: 2017 HRTO 1671 Indexed as: Dolinar v. University of Waterloo

WRITTEN SUBMISSIONS

Steven Dolinar, Applicant Self-represented

University of Waterloo and John Burbidge, Respondents Nickola Voegelin, Counsel

Introduction

1This Application alleges discrimination with respect to services (education) because of disability contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code").

2The applicant was a student at the respondent university. The Application alleges that the respondents failed to provide him with appropriate accommodations during the winter term of 2015, particularly in one course taught by the individual respondent. The applicant wrote the final exam for the course on April 25, 2015. The Application was received by the Tribunal on April 11, 2016.

3For the reasons set out below, I find that the application may continue in the Tribunal's process. I cannot find that the allegations have no reasonable prospect of success. I also find that the writing of the exam on April 25, 2015 was an incident in a series with the allegations that occurred during the Winter 2015 term for the purposes of s. 34(1)(b) of the Code, and as such the allegations are timely. I also find that the individual respondent may remain a party to the Application. I refuse, however, the applicant's request to anonymize.

Procedural Background

4By Case Assessment Direction ("CAD") dated January 20, 2017 (the "January 2017 CAD"), the Tribunal directed that a preliminary hearing be held by conference call. The applicant subsequently requested that the preliminary issues be addressed in writing as an accommodation for his disability. The Tribunal granted the applicant's accommodation request. A Notice of Preliminary Hearing was, however, issued in error scheduling an in-person hearing for August 1, 2017. In a further CAD dated August 3, 2017 (the "August 2017 CAD") I set out a timeline for the filing of written submissions. Beyond the timelines I specified, the respondents filed further submissions to address what it called factual inaccuracies in the applicant's reply submissions. The applicant objected to the respondents' additional submissions, and asked that they not be considered. The issues raised in the respondents' further submissions do not affect my decisions below.

Issues

5The issues to be addressed at the preliminary hearing were:

1. whether the Application should be dismissed, in whole or in part, on the basis that allegations may be untimely;
2. whether to remove the individual respondent;
3. whether to anonymize the applicant's name; and
4. whether the Application should be dismissed on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

Analysis and decision

Delay

6Sections 34(1) and (2) of the Code read as follows:

(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.

7The respondents argue that the last alleged incident of discrimination occurred on March 5, 2015, the last mid-term examination, on the basis that all the accommodations requested were implemented at that point. As this date was more than one year prior to filing, they argue that the Application is therefore untimely.

8The applicant argues that the last incident of discrimination was the writing of the final exam for the course on April 25, 2015. He argues that the earlier allegations respecting accommodations were incidents in a series for the purposes of s. 34(1)(b), ending with the final exam, and as such are timely. He argues that the accommodations were not in place for the final exam, and he further argues that his low mark on the final exam was due to a failure to accommodate both during the term and during the exam itself.

9I do not agree with the respondents that the last alleged incident of discrimination was March 5. Aside from the fact that the applicant did not write the mid-term test, and wrote only the final exam on April 25, 2015, I agree with the applicant that the last incident in the series for the purposes of the Code was either when he wrote the final exam, or when he received his grade for the course. As both these dates were within the one-year time period under s. 34(1)(a), they are timely.

10I also agree that the allegations respecting the failure to accommodate the applicant during the term and the applicant's writing the exam for that class are sufficiently closely linked to constitute a series of incidents for the purposes of the Code. The applicant specifically alleges that the failure to accommodate during the Winter 2015 term led to his ultimately performing poorly on the final exam, and I cannot determine, in the absence of hearing evidence on the issue, that such allegations have no reasonable prospect of success. The allegations from January to April 2015 are, therefore, timely.

Individual Respondent

11The respondents seek to remove the individual respondent as a party.

12Section 46.3(1) of the Code provides:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

13The applicant relies on Nye v. McMaster University, 2012 HRTO 2285, at para. 15, which refused to remove an individual respondent where that individual's conduct was the central concern raised.

14The respondent argues that based on the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5, it is not necessary for the individual respondent to remain a party, as there is an organizational respondent which accepts that it is liable the individual respondent's alleged actions, which occurred in his capacity as an instructor at the university. The respondents also note that the Tribunal has, in similar factual circumstances, held that an individual respondent is not a necessary party. See Pearson v. George Brown College, 2015 HRTO 936 at para. 5.

15However, the individual respondent's conduct is a central issue in this Application, and, if the allegations are proven, they may justify a remedy specifically against him. This is one of the factors in Persaud which supports an individual remaining as a respondent. Further, as noted by the Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), at para. 34, the purpose of the deemed liability provisions in s. 46.3 of the Code is to confirm parallel statutory liability of an employer for the actions of an employee, not to replace it.

16Without making any determination as to whether it would ultimately be appropriate to grant a remedy personally against the individual respondent, I cannot find at this point in the proceedings that it is appropriate to remove him as a party. The request to remove the individual respondent is refused.

Anonymization

17The applicant seeks to have his name anonymized. He relies on the decision A.B. v. University of Waterloo, 2015 HRTO 1126 ("A.B."), which granted a request to anonymize due to the potential stigma related to mental health disabilities.

18Though the applicant's disabilities are different than those in A.B., the applicant argues, broadly, that having a disability is a special circumstance that requires anonymity.

19In C.M. v. York Region District School Board, 2009 HRTO 735, at para. 20, the Tribunal explained the principles behind open justice, noting that "[w]ithout good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity." The Tribunal has not generally considered simply having a disability to constitute a good reason for anonymity, absent exceptional circumstances. In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, at paras. 4-7, the Tribunal noted that most cases raising disability as a ground will require the disclosure of some personal information respecting the disability. In a case such as this where the issue is whether the respondent had properly accommodated the applicant's disability needs, it will invariably be necessary to address what those needs are, which will also generally require some disclosure of the nature of the disability in question.

20Though I appreciate that the applicant, like many litigants, would rather not be publically identified as a person with a disability, the applicant has not pointed to any exceptional circumstances that would justify anonymization.

No Reasonable Prospect of Success

21The final issue to address is whether the Application should be dismissed, in whole or in part, on the basis that it has no reasonable prospect of success.

22I cannot find at this point that the Application has no reasonable prospect of success. It is clear that there are a number of disputed facts in this case. Under Rule 19.6A of the Tribunal's Rules of Procedure, I am not obliged to provide reasons. The fact that I am declining to dismiss the Application at this point is not meant to indicate that I consider the Application is likely to succeed, but simply an indication that the issues raised by the applicant cannot be determined in the absence of hearing the evidence of the parties.

Next Steps and directions

23I note that the parties have not attempted mediation. Within 14 days of the date of this Interim Decision, the parties shall advise the Registrar whether they are prepared to engage in mediation in an effort to resolve this dispute. If the parties do not agree, a hearing will be scheduled in the normal course.

24I am not seized.