ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, PITT and SWINTON JJ.
B E T W E E N:
ANICA VISIC
Applicant
Michael D. Wright for the applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION, UNIVERSITY OF WINDSOR, PROFESSOR BRIAN MAZER, PROFESSOR MARY GOLD, and DR. ROSS PAUL
Bay Ryley for Ontario Human Rights Commission
Marilee Marcotte for University of Windsor et al.
Respondents
Heard: at Toronto January 30, 2008
1The applicant failed first year law at the University of Windsor (the “University”). She had a physical disability and was permitted on medical grounds to re-enrol. She went on to successfully complete law school, receiving an LLB degree.
2The University policy requires that transcripts show all years attended, including failed years. The applicant’s position is that the policy is discriminatory and that she continues to be adversely affected by the policy each time she needs to produce her transcript to a prospective employer.
3She launched a complaint with the Ontario Human Rights Commission (the “Commission”), but the Commission determined she was out of time, having initiated the complaint beyond the six month limitation period .The Commission declined to deal with the complaint, pursuant to s.34(1)(d) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The Commission was not satisfied that the delay was incurred in good faith.
4The applicant seeks Judicial Review of that decision, arguing that the discriminatory policy continues unaltered and that whenever she may require a transcript, it will reflect the failed year, to her continued detriment. In effect, she argues, there can be no limitation period enforceable against her.
5For the reasons following, I would dismiss the application.
Facts
6The applicant enrolled in first year law at the University in September 1999. In January 2000, in discussions with Mary Gold, the Associate Dean, concerning the grades she had received on the winter exams, she revealed that she had a physical disability, myofascial pain syndrome. She experienced pain and muscle spasms during exams, from prolonged sitting and writing.
7As a result, accommodation was provided by the University, but she failed first year. She alleges that the accommodation was inadequate, a position disputed by the University.
8She petitioned the Academic Status Committee (the “Committee”) for re-admission into first year law on medical grounds. In August 2000 the Committee agreed to re-admit her on medical grounds and to defer her re-enrolment at her request. The applicant re-enrolled in September 2002, having undertaken a disability rehabilitation program in the interim. She successfully completed law school and obtained an LLB in 2005.
9Meanwhile, in July 2003, in the context of seeking summer employment, she requested a transcript of her successful first year results.
10For the first time, she discovered that her marks from the failed year were part of the transcript.
11On July 19, 2003, the applicant wrote to the Dean of the Faculty of Law requesting that the grades from the initial appealed year be removed from her transcript because the Committee had agreed to re-admit her into first year for medical reasons. She argued that, since the marks would not count toward her degree, it would not be necessary to display them on the transcript. She emphasized that the listing of her 1999/2000 marks on her transcript would restrict or limit her chances for employment and her future career prospects in the legal profession.
12In an exchange of emails culminating on August 12, 2003, the Associate Dean made it clear, despite the entreaties of the applicant, that no one in the Law Faculty could waive the transcript requirement in any circumstances.
13On August 18, 2003, the applicant sent a letter to the President of the University, Dr. Ross Paul, and asked that the 1999/2000 year be removed from her transcript.
14By letter dated September 16, 2003, she received a reply from Prof. Brian Mazer, then Vice Provost, Students and Registrar(Acting):
Dear Ms. Visic:
Dr. Paul has asked me to correspond with you regarding your inquiry of August 18, 2003, which was received on September 5, wherein you asked the University to waive the inclusion of the 1999-2000 academic year from your transcript.
As I believe you have been informed by Professor Mary Gold, Associate Dean of Law, this is not possible. The University transcript is the official record of your enrolment and academic achievement while a student at the Faculty of Law, University of Windsor. It is not possible to 'pick and choose' the entries on this record.
You are not the first law student to have experienced difficulties in the first year of legal studies and to have been readmitted to first year law based upon medical and/or compassionate grounds. In such circumstances, at the request of the Faculty of Law, we can place a notation at the bottom of your transcript indicating to the effect that the student was 'readmitted to Law 1 on the basis of medical/compassionate grounds'.
In addition, in my experience as Associate Dean of Law over the years, some students, in situations similar to yours, have found it to be of assistance to have a letter from the Office of the Associate Dean outlining, in general terms, the student's situation and the decision to readmit the student into first year.
I hope this letter is of assistance to you and that you can understand why the official University of Windsor transcript cannot simply ignore your first year of law study in 1999-2000. If you wish to pursue either or both of the suggestions I mention above, I would suggest that you contact Associate Dean Gold.
If you have any further questions, please feel free to contact me.
15The applicant received that letter on September 18, 2003, and on September 23, 2003 she signed a complaint of discrimination at the University's Human Rights Office.
16On September 26, 2003, she met with Prof. Gold to discuss the September 16, 2003 letter she had received from Prof. Mazer.
17The applicant met with Prof. Mazer on September 30, 2003. As a follow-up to that meeting, she wrote a further letter to Prof. Mazer on October 7, 2003 continuing to press her position.
18On October 20, 2003, Prof. Mazer wrote to the applicant:
Dear Ms. Visic:
Thank you for your letter of October 7, 2003. I have met with the Secretary and General Counsel to the University to further discuss your request and the points you raise in your letter. While I understand the difficulty you experienced during your first year of studies, I must still deny your request to remove the 1999-2000 academic year from your transcript.
I reiterate my offer to place a notation at the bottom of your transcript indicating that you were 'readmitted to Law 1 on the basis of medical/compassionate grounds'. Further, as noted in my letter dated September 16, you may also wish to request a letter from the Office of the Associate Dean of Law outlining the situation and the decision to readmit you into first year.
Again, if you wish to pursue either or both of these suggestions, please be in contact with Professor Mary Gold, Associate Dean of Law.
19On October 24, 2003, the applicant spoke by telephone with Cheryl Henshaw, the University of Windsor's human rights commissioner. The applicant concluded that Ms. Henshaw "would not objectively deal with [her] human rights complaint" and therefore asked Ms. Henshaw "not to proceed with the matter since [she] would be contacting Professor Mazer to obtain his reasons for denying my request."
20Although the applicant continued to press for a redacted transcript and to challenge the position of the University through March of 2004, the position of the University remained unchanged.
21It is apparent that the University's final position was made clear to the applicant in the letter of September 16, 2003, and if not by then, certainly by the letter of October 20, 2003.
22On June 9, 2004, she contacted the Commission to file a complaint against the University of Windsor. She signed a formal complaint in April, 2005.
23In her response to the Commission Staff's Case Analysis Report dated January 20, 2006, the applicant gave these reasons for her delay in initiating a complaint with the Commission:
- When I contacted the Ontario Human Rights Commission to initiate the complaint I indicated that I did not contact the Commission before because I was trying to resolve the problem with the University and through the Human Rights Office at the University. I also indicated that I have been full time in university and continued with the rehabilitation program. In addition, I informed that I could not afford to retain counsel and have been doing the complaint processes alone.
The Commission Decisions
24On March 15, 2006, the Commission issued its decision, exercising its discretion under s.34(1) (d) of the Code to not deal with the complaint for the following reasons:
The evidence indicates that the events giving rise to this complaint occurred on or before September 2003.
The complainant first contacted the Commission on June 9, 2004, some 9 months later. She did not file her complaint until April 11, 2005, some 18 months later.
The complainant has indicated that her reason for delay was that she was busy with school. There is no indication that the complainant could not have contacted the Commission to file a complaint within the six month time frame.
The Commission is not satisfied that the delay was incurred in good faith.
25By letter dated March 28, 2006, the applicant requested that the Commission reconsider its decision.
26On December 13, 2006, the Commission issued its decision under s. 37 upholding its earlier decision, for the following reasons:
The Commission remains of the view that the evidence indicates that in October 2003 the respondents refused to modify the complainant's transcript regarding the 1999/2000 academic year.
The Commission remains of the view that the complainant first contacted the Commission in June 2004, approximately 9 months later. A formal complaint was not signed until April 2005.
The Commission remains of the view that the respondent's refusal to change their position does not constitute a new event that extends the 6 month time frame in which complaints must be filed.
The Commission remains of the view that there is no indication that the complainant could not have contacted the Commission to file a complaint within the 6 month time frame.
The Commission remains of the view that it is not satisfied that the delay was incurred in good faith.
The Issues
Did the Commission err in law and exceed its jurisdiction with respect to its determination that the delay was not incurred in good faith?
Did the Commission err in law and exceed its jurisdiction in failing to consider or determine that the alleged discrimination was continuing, with the effect that the 6 months time limit in s.34(1)(d) had no application?
Standard of Review
27The provision of the Code central to this application is s.34(1)(d):
Where it appears to the Commission that,
(d) the facts upon which the complaint is based occurred more than 6 months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,
the Commission may, in its discretion, decide to not deal with the complaint.
28The standard of review of the exercise of discretion by the Commission, was heretofore that of the most deferential standard of "patent unreasonableness".
Losenno v. Ontario (Human Rights Commission) (2005), 2005 36441 (ON CA), 260 D.L.R. (4th) 298 at para. 18 (Ont. C.A.); leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 531.
Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419 at paras. 22-26 (Div. Ct.).
Hassaram v. Ontario (Human Rights Commission), [2005] O.J. No. 29 at para. 29 (Div. Ct.).
29Relief could be granted only if the decision below was irrational, not in accordance with reason.
Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941.
Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., 1989 49 (SCC), [1989] 2 S.C.R. 983.
30The "patently unreasonable" standard has been abolished by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, leaving only two standards remaining, reasonableness and correctness.
An exhaustive review is not required in every case to determine the proper standard of review … existing jurisprudence may be helpful … .
Dunsmuir, para. 57
31Here, the foregoing cases support a post-Dunsmuir standard of reasonableness to be applied to discretionary decisions of the Commission. That is to say, the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded (see Dunsmuir, para. 62). This jurisprudence is sufficient to determine the standard of review – which is that of reasonableness.
Good Faith
32Here, “the facts upon which the complaint is based”, per s.34(1)(d) are:
(a) the University’s policy;
(b) the point in time when the applicant became aware of the policy; and
(c) the alleged discrimination.
33The applicant gave three reasons for the delay in filing a complaint. First, she stated that she was trying to resolve the problem with the University – i.e. by direct discussion or contact without engaging a litigious process. She says she continued to contact the various persons in the University hierarchy through to March 2004.
34However, the University's position was firm and was made clear to her. The University's position did not waiver, and any response from the University after September 16, 2003 simply repeated the position taken in the correspondence of that date.
35Although the applicant’s submission was not precisely referenced in the decision of March 15, 2006, the Commission did find that "there is no indication that the complainant could not have" filed a complaint within the 6 months time frame.
36Second, the applicant stated that she could not afford to retain counsel and had been doing the complaint processes alone. One might observe that it appears she managed to initiate the process in June 2004.
37Third, she stated she had been in full time university attendance and in a continuing rehabilitation program. Being busy with school was referenced in the Commission decision. One might observe that she nevertheless had the time to continue to press the University following October 20, 2003 through to at least March 2004.
38In my view the "delay" commenced at least by October 20, 2003 and ended on June 9, 2004, approximately 7 1/2 months later. Any delay beyond June 9, 2004 was not established to be caused by the applicant.
39The Commission must be "satisfied" that the delay was incurred in good faith. Contrary to the argument of the applicant, a finding that the Commission is not so satisfied, does not ipso facto result in a finding of bad faith. Rather, such a finding may mean only that the applicant has not provided evidence or reasons sufficient to satisfy the onus.
40The Commission could have reasonably concluded that the applicant genuinely believed that an internal remedy might be possible, and hoped she could avoid investing time and money into litigation while in school and in a rehabilitation program. However, it did not do so, and the Commission’s findings on the issue of good faith and delay are entitled to significant deference. It was open to the Commission to find that the reasons given for the delay were not credible or adequate. It is readily apparent that the Commission's original decision and its decision upon review under s. 37, on the issue of good faith, cannot be said to be unreasonable.
Continuing Contravention of the Code
41Assuming but without deciding, that the University’s policy is discriminatory, does the continuing effect of the policy constitute a new act of discrimination whenever a transcript is requested?
42In my view it does not, as the Commission reasonably decided.
43In Bourne v. Ontario (Human Rights Commission), [1997] O.J. No. 5253 (Div. Ct.), the complainant alleged that the respondent's manner of dividing a pension surplus contravened and continued to contravene a provision of the Code.
44This Court rejected the submission that there was a continuing contravention:
What the complaint referred to as continuing contraventions of the Code, were but continuing effects or consequences flowing from a notional split of the surplus. It was therefore open to the Commission to conclude the complaint was made more than six months after the facts occurred on which it was based.
45Of like effect is Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 2967 (MB CA), 25 Man. R. (2d) 117 at para. 19 (C.A.). The complainants complained that the Manitoba legislation of compulsory retirement at age 65 was discriminatory. The Court had to determine whether the complaints were out of time and the issue of a "continuing contravention" was addressed. The Court held there was none:
To be a 'continuing contravention', there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.
46The reasoning in the Manitoba Human Rights Commission decision was applied in Lynch v. British Columbia (Human Rights Commission), 2000 BCSC 1419, [2000] B.C.J. No.1999 (S.C.); O'Hara v. British Columbia (Human Rights Commission), 2002 BCSC 559, [2002] B.C.J. No.887 (S.C.); and Callaghan v. University of Victoria, [2005] B.C.H.R.T. 589.
47In Callaghan, part of the complaint was based on the fact of the student's disability, her failed year, and the continued reflection of the failed year in her transcript.
48In Lynch, the complaint was based on an allegation that Simon Fraser University, the complainant’s employer, discriminated against him in failing to take account of his psychiatric disability when he returned to work following a layoff. He was ultimately dismissed from his employment. His complaint was held to be out of time, the events not being a succession or repetition of separate acts.
49In O’Hara the complainant alleged that he had a physical disability and that the province had discriminated against him by failing to hire him on several occasions. It was held that there was not a continuing contravention and that he was out of time in all but two of his complaints.
50Applying the reasoning in Manitoba H.R.C. and in Bourne, I conclude the decision of the Commission was not only reasonable but correct. The allegations were not those of a continuing contravention of the Code, rather of continuing effects or consequences.
Conclusion
51Accordingly, the application is dismissed.
52Order to go fixing the costs of the Commission at $1,500 plus G.S.T., and of the remaining respondents collectively at $1,500 plus G.S.T., totalling in all $3,000 plus G.S.T.
Ferrier J.
Pitt J.
Swinton J.
Released: May 5, 2008
COURT FILE NO.: 396/07
DATE: 20080505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, PITT and SWINTON JJ.
B E T W E E N:
ANICA VISIC
Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION, UNIVERSITY OF WINDSOR, PROFESSOR BRIAN MAZER, PROFESSOR MARY GOLD, and DR. ROSS PAUL
Respondents
APPLICATION UNDER the Judicial Review Procedure Act, R.S.O. 1990, c.J.1, as amended, and Rule 68 of the Rules of Civil Procedure
REASONS FOR JUDGMENT
FERRIER J.
Released: May 5, 2008