Okouneva v. HRTO and Ryerson University, 2018 ONSC 374
CITATION: Okouneva v. HRTO and Ryerson University, 2018 ONSC 374
DIVISIONAL COURT FILE NO.: 194/17
DATE: 2018/02/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederman, Kiteley and Doyle JJ.
BETWEEN:
GALINA OKOUNEVA
Applicant
– and –
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO AND RYERSON UNIVERSITY
Respondents
COUNSEL:
Aaron Rousseau, for the Applicant
Simon E.C. Mortimer, for the Respondent, Ryerson University
Jason Tam, for the Respondent, Human Rights Tribunal of Ontario
HEARD: December 6, 2017
REASONS FOR DECISION
By the Court
Nature of Proceedings
[1] The Applicant, a former professor at Ryerson University (“Ryerson”), seeks judicial review of a decision of the Human Rights Tribunal of Ontario (“Tribunal”) dated March 20, 2017 (“final decision”), dismissing her application alleging discrimination in employment on the basis of disability, sex and reprisal. The Tribunal found that the application was not filed within one year of the last incident of discrimination as required by s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”) and that she did not have any prospect of success on her claim of reprisal.
[2] She also seeks judicial review of the Tribunal’s decision dated November 16, 2016 (“interim decision”) dismissing her Request to Amend her application for a number of reasons, one being that the amendments would expand the scope of the proceedings and would cause substantial prejudice to Ryerson.
Background
[3] In 2003, the Applicant, who holds a doctorate degree in Physics and Mathematics, accepted a probationary tenure track faculty position in the Department of Aerospace Engineering at Ryerson.
[4] Ryerson’s collective agreement provides for a system of collegial assessment during the probationary period and has a provision stating that employment would end if the probation was unsuccessful and tenure was not granted.
[5] Each academic year, the Chair of the Department is charged with forming a Department Appointments Committee (“DAC”) consisting of tenured faculty members from the department. The DAC is responsible for performing an annual year-end assessment of probationary faculty members in the Department.
[6] In addition, in the fall semester of the final year of probation, the DAC carries out a tenure review, which involves reviewing the member’s tenure dossier and assessing whether the probationer has satisfied the criteria for transfer to tenure. The DAC recommendation to the Dean of the Faculty as to whether tenure should be granted or not. The Applicant is then provided with an opportunity to make submissions regarding the DAC’s recommendation to the Dean.
[7] In December 2010, the DAC (two members having been replaced pursuant to the Applicant’s request and an agreement) had completed its assessment of the Applicant’s tenure dossier and the Applicant was advised that the DAC had unanimously recommended that she not be granted tenure. In January 2011, the Applicant exercised her right to respond to the DAC recommendation and made three separate sets of written submissions outlining her position.
[8] On March 10, 2011, after having reviewed the DAC recommendation, the Applicant’s tenure dossier and her representations, the Dean released his decision upholding the DAC’s recommendation thereby denying tenure. The Applicant’s employment was terminated effective May 18, 2011. (Originally, it was effective May 4, 2011 but it was extended to May 18, 2011 to coincide with the marking of the final examinations.)
[9] In a letter dated March 10, 2011, the Dean of the faculty told the Applicant:
For the above noted reasons, I accept the recommendation of the Special DAC. I am therefore indicating to you that you will not be transferred to the tenured faculty.
In accordance with article 4.4D of the Collective Agreement, your employment as an Associate Professor in the Department of Aerospace will cease at the end of May 4, 2011, being the grade submission deadline for the Winter 2011 term. Your notice shall be not less than six months, or six months’ pay in lieu thereof, or combination of the two.
[10] On March 11, 2011, the Ryerson Faculty Association (“RFA”) filed a grievance based on the Applicant’s denial of tenure.
[11] On March 22, 2011, the Applicant gave an interview to the campus newspaper, the Ryersonian, with regard to the discrimination she faced upon the denial of tenure and she indicated that if the grievance did not succeed, there would be a hearing at the Tribunal. The article “Prof. Claims Gender Discrimination” was published on March 22, 2011.
[12] On April 16, 2011, a petition protesting the alleged discrimination was signed by more than 200 students.
[13] On April 24, 2012, the Applicant filed her application to the Tribunal under s. 34 of the Code. She alleged that in denying her tenure, Ryerson discriminated against her on the basis of gender and disability.
[14] She also alleges that her employment was terminated as a reprisal for alleging gender discrimination and indicating an intention to make a claim to the Tribunal. In her application, she states:
At some point before the grievance meeting with the Administrator in April of 2011, I was verbally told by RFA officers that the refusal to resolve the RFA grievance had been a response to my interview given to the Ryersonian student journalist. They also said that the Administration settles with those professors who had been “behaving well”.
[15] On April 29, 2011, the Vice-Provost Faculty Affairs rejected the Applicant’s grievance. The Applicant was advised on May 3, 2011. The grievance was subsequently referred to arbitration.
[16] The application to the Tribunal was filed more than one year after the denial of tenure decision of March 10, 2011 but less than a year after the Applicant received notice of the denial of the grievance from the Vice-Provost on May 3, 2011.
[17] On July 20, 2012, Ryerson filed a response and brought a request for an order during proceedings seeking dismissal of the application due to delay on the basis that the application was filed over one year after the alleged discrimination contrary to s. 34 of the Code.
[18] The parties agreed to defer the application until the grievance process pursuant to the collective agreement was completed. After 19 days of arbitration over several years, on February 16, 2016 the Applicant’s grievance was dismissed.
[19] On June 9, 2016, upon the consensual reactivation of the application, the Tribunal issued a Case Assessment Direction which provided the parties the opportunity to make submissions on case law developments since the filing of the application.
Standard of Review
[20] The Tribunal is a highly specialized expert tribunal entitled to a high degree of deference. The Tribunal’s determinations and findings of fact concerning allegations of discrimination are at the heart of its specialized expertise in the adjudication of human rights applications and interpretation of its home statute.
[21] The standard of review of the Tribunal’s decision is reasonableness (see Shaw v. Phipps, 2012 ONCA 155 at para. 10).
[22] As stated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, reasonableness as a standard is governed by the principle that certain matters before administrative tribunals do not lend themselves to only one result. That is, the standard of reasonableness allows for a number of possible acceptable outcomes.
Issues:
(1) Was the Tribunal’s final decision unreasonable:
(a) in concluding that the date of denial of tenure was the event that triggered the one year application deadline?
(b) in finding that there was no prospect of success on the claim of reprisal?
(2) Was the Tribunal’s interim decision denying the Request to Amend the application unreasonable?
Issue #1(a): Was the Tribunal’s final decision unreasonable in concluding that the date of denial of tenure was the event that triggered the one year application deadline?
Position of the Parties
[23] The Applicant submits that the Tribunal’s decision was unreasonable for the following reasons:
− it failed to consider the facts surrounding her termination and the recent jurisprudence regarding the commencement of the limitation periods and termination dates;
− it erred in failing to consider that her employment could be extended to a date subsequent to her denial of tenure; and
− it failed to find that Ryerson’s decisions subsequent to the denial of tenure were part of a pattern of continuing discrimination.
[24] Ryerson submits:
− a denial of tenure is akin to a denial of a job: until tenure is obtained, the Applicant is on probation;
− the Tribunal was reasonable in finding that the date of the denial of tenure was the date that dictated the one year timeline to file an application; and
− the events occurring after the denial of tenure do not constitute new incidents of discrimination.
Statutory Framework
[25] Section 34 of the Code states that an application must be filed within one year of the alleged discriminatory act:
34 (1) If a person believes that any of his or her rights under Part 1 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.
[26] The Code provides for an extension of time for individuals that file applications outside of the statutory time limit. Section 34(2) reads:
(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.
[27] Sections 40 and 41 set out the manner in which procedures are disposed of:
The Tribunal shall dispose of applications made under this Part by adopting procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
Tribunal’s Findings
[28] The Tribunal found the denial of tenure was the triggering event of the one year period and it did not trigger a number of events that could be construed as new and fresh steps of discrimination. The Tribunal found that there was no separate act or decision made on May 18, 2011, i.e. the last day of her employment, which could result in a separate Code breach.
[29] The Tribunal concluded that the application was dealing only with the alleged discrimination on the basis of sex and disability on the denial of tenure.
[30] The Tribunal reviewed the jurisprudence dealing with collective agreement cases where events subsequent to the termination date were found not to be “a series of incidents” within the meaning of s. 34(1) (b) of the Code.
[31] The Tribunal distinguished Dahir v. Corving Building Maintenance Ltd., 2014 HRTO 1149 and Yardley v McMaster University, 2016 HRTO 490, as in those cases, the applicants had been given notice that their employment would be terminated with an effective date in the future. This decision was revocable as it was contingent on certain circumstances existing. In contrast, here, the denial of tenure was effective the date it was made and was not a decision that could be changed at a later date.
[32] Also, the Tribunal distinguished Leve v. Grant Thornton LLP, 2015 HRTO 536, where the applicant had signed a partnership agreement that contained a potentially discriminatory requirement that could be applied in the future. There, the Tribunal determined that the relevant incident of alleged discrimination was the date the policy applied to the applicant and he was forced to retire.
[33] The Tribunal did not accept the Applicant’s submission that her application was filed on a timely basis as there was a possibility that the grievance to the Vice-Provost Faculty Affairs could have changed the decision about tenure.
[34] Relying on the jurisprudence of Visic v. Ontario Human Rights Commission (2008) 20993 and Garrie v James Joan Inc., 2012 HRTO 1955, the Tribunal found that “any alleged continuing effect flowing from the tenure denial decision does not extend the Code’s section 34(1) limitation”.
[35] At para. 43, the Tribunal stated:
A “continuing contravention” pursuant to section 34(1)(b) requires a succession or repetition of separate acts of discrimination of the same character; that is separate contraventions of the Code. The subsequent decision of the respondents through the grievance and the Vice-Provost’s decision cannot be characterized as repetitions of separate contraventions of the Code”.
[36] In addition, the Applicant did not make any submissions to support a finding of “good faith reason for the delay or to support a claim that no prejudice would be experienced by the delay”. (para. 45)
Analysis
[37] In her application, the Applicant clearly alleged that the incident of discrimination was the denial of tenure as she requested that the Tribunal review this decision and grant her tenure.
[38] At page 15, para. 6, the Applicant states: “In making their decision to deny me tenure and, as a result, fire me from my position as an Associate Professor, on December 8th, 2010, the members of Ryerson’s Special DAC#2 discriminated against me, for they exercised different criteria when assessing my professional record than Ryerson DAC members exercised when assessing the records of my male colleagues”.
[39] On Page 17, para. 1 she states: “For all of the above reasons, I believe that I was discriminated against based on the ground of sex, and it was this discrimination that led to my loss of tenure and consequently the loss of my job as an Associate Professor and my ability to complete my life’s work”.
[40] In our view, the Tribunal was reasonable in finding that the date of termination was the denial of tenure, which ended the probationary period of the Applicant’s employment with Ryerson, and the Vice-Provost’s denial of grievance was not a continued contravention of the Code.
[41] The Tribunal’s final decision was reasonable having regard to the law on the grievance procedure. The Tribunal identified the proper authorities and followed cases such as Visic and Garrie which had similar factual backgrounds. The acts subsequent to the denial of tenure were part of the consequences of one act of discrimination, which may have continuing effects but were not a series of acts capable of constituting discrimination.
[42] It properly distinguished cases such as Dahir, Yardley and Leve as the allegations of discrimination there arose from different dates of termination.
[43] Therefore, in our view, the Tribunal’s decision that the application was not filed within one year of the last incident of alleged discrimination, i.e. denial of tenure, was reasonable.
Issue #1(b): Was the Tribunal’s final decision unreasonable in finding that there was no prospect of success on the claim of reprisal?
Position of the Parties
[44] The Applicant submits that her public statement to the Ryerson newspaper constituted evidence of an attempt to assert a Code right and there was no requirement that the Applicant’s assertion of her rights must be done under the auspices of a demand letter.
[45] The Applicant submits that the Tribunal erred in not finding that there was retaliation in light of the fact that RFA officers told her that the reason that the grievance was denied was as a retaliation for the media interview. In addition, she will be calling Ryerson employees as witnesses. She argues that there was a causal nexus as the Vice-Provost’s denial of the grievance was one month after the publication and 13 days after receiving the student petition. Therefore, the Vice-Provost’s denial of the grievance and Ryerson’s termination of her employment are obviously actions taken against the Applicant.
[46] Ryerson submits that:
− it was within the purview of the Tribunal to conclude based on the record before it that a statement of belief, whether public or private, is not evidence of an actual intention to exercise the right to claim and enforce rights under the Code;
− the Tribunal’s decision was reasonable in finding that there was no reasonable prospect of demonstrating that what occurred was an actual or threatened reprisal; and
− the Tribunal’s decision was within the range of possible acceptable outcomes.
Statutory Framework
[47] A reprisal is a separate claim under s. 8 of the Code, which reads:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
Tribunal’s Findings
[48] Firstly, the Tribunal found that making a statement to the media indicating that she believed that she experienced discrimination because she was a woman does not amount to claiming or enforcing her rights within the meaning of s. 8 of the Code.
[49] Secondly, the Tribunal applied the elements required to establish reprisal set out in Noble v. York University, 2010 HRTO 878, i.e.
a) an action taken against, or threat made to, the complainant;
b) the alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c) an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
[50] The Tribunal noted that at the time of the media publication she had not instituted human rights proceedings under the Code and the Tribunal held that the mere assertion that she experienced discrimination does not amount to claiming or attempting to enforce her rights under the Code. The Tribunal made the following finding at para. 51:
“I find that making a statement to the media is different from a situation in which an applicant may have directly warned a respondent that she would file an application at the Tribunal if the respondent did not comply with what the applicant was asserting to be a Code right and the respondent acted adversely against the respondent for making this assertion.”
a) an action taken against, or threat made to, the complainant:
[51] The Tribunal did not question the first prong of the test as the Vice-Provost’s denial of the grievance and termination of the Applicant’s employment were actions taken against the Applicant.
b) the alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code:
[52] The Tribunal found that the Applicant failed to satisfy it that the grievance refusal was based on the fact that she claimed or attempted to enforce her Code rights.
c) an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right:
[53] The Tribunal found that the Applicant had failed to “point to any evidence” (para. 52) to establish that the action was taken by the Vice-Provost with intent to punish or retaliate. At para. 53, the Tribunal states that: “The Vice-Provost’s decision references the oral submissions the applicant made to the Vice-Provost. His decision reviews those submissions and he agrees with the conclusions reached by the Departmental Appointment Committee. Without more to demonstrate that it was the Vice-Provost’s intention to retaliate, the Vice-Provost’s decision indicating that he did not disagree with the findings of the Departmental Appointment Committee cannot be accepted as reprisal.”
[54] In addition, she failed to establish that the Vice-Provost engaged in an action, or threat, which was intended as retaliation for the claiming or enforcing of a right under the Code. The Vice-Provost’s decision refers to the Applicant’s oral submissions and the conclusions of the DAC. He agreed with the recommendations of the DAC. According to the Tribunal, this is not reprisal.
Analysis
[55] The Tribunal recognized that it is not necessary that an application to the Human Rights Tribunal be filed in order to find a reprisal. However, it did point out that the Applicant’s statement to the media is different from her giving a warning directly to Ryerson that she would be filing a complaint with the Commission and that Ryerson acted adversely against her for such assertion.
[56] Even if an indirect communication through a media report could satisfy the second requirement of a complainant having claimed or attempted to enforce a Code right, it was reasonable for the Tribunal to have concluded that the third requirement of an intention on the part of Ryerson to retaliate because of that claim, had not been met.
[57] Apart from the applicant’s allegation, the Tribunal found that there was no evidence that the grievance refusal by the Vice Provost was based on the fact that she claimed or attempted to enforce her rights under the Code.
[58] The only basis for the applicant’s allegation was in the form of hearsay statements of anonymous RFA officials. It was reasonable for the Tribunal to conclude that this does not constitute sufficient evidence upon which she had any prospect of demonstrating the Vice- Provost’s intention to retaliate, particularly in the face of the Vice-Provost’s reasoned decision which took into account the oral submissions that she made to him.
[59] The Tribunal’s dismissal of the reprisal complaint was therefore reasonable.
Issue #2: Was the Tribunal’s interim decision denying the amendment to the application unreasonable?
Position of the Parties
[60] On August 11, 2016, the Applicant filed a Request to Amend her original application. She submitted that:
− the proposed amendments clarified and added detail to the application regarding the allegation that she was terminated on May 18, 2011 as a result of discrimination based on gender, disability and reprisal;
− she did not have legal fees to retain counsel to assist her with the original application and that her counsel simply reorganized the facts that were already in the original application without adding significant new allegations; and
− she disagrees with the Tribunal’s decision that the amended application would prejudice Ryerson.
[61] Ryerson opposed the Request to Amend on the basis that:
− the amended application would significantly broaden the scope of the application which would require Ryerson to respond to entirely different issues: such as the nature of pre-tenure and tenure employment; terms of the collective agreement; past tenure settlement and all settlement discussions during the Applicant’s tenure arbitration; the class schedule for spring 2011 and the role of the Vice-Provost Faculty Affairs in the grant of tenure or guarantee of employment;
− the amended application would require an examination of settlements where others were permitted to continue working under another rubric even though they were denied tenure;
− in the Request to Amend, the Applicant alleged discrimination to the termination date effective May 18, 2011 in contrast to the original application which was based on the denial of tenure. She speaks of the effect of the discrimination on her finances, her career and her personal life, and the loss of business opportunities and her physical and mental health; and
− this new claim brought years later was seriously prejudicial to Ryerson and would require more extensive research and a change to their response. As well, one of the deans, an important witness, would not be available to testify as he had passed away.
Statutory Framework
[62] Rule 1.7 of the Tribunal’s Rules of Procedure sets out the process for amendments:
In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
c) allow any filing to be amended;
s) make such further orders as are necessary to give effect to an order or direction under these Rules;
w) take any other action that the Tribunal determines is appropriate.
The Tribunal’s Findings
[63] The Tribunal dismissed the Request to Amend finding that the Applicant “did not provide any particulars of how this alleged termination is connected to the grounds of sex, disability or reprisal. As well the Request does not provide any reasons for the delay in making this Request to Amend”. (para. 5)
[64] The Tribunal considered the timing and nature of the proposed amendment, reasons for the amendment and the prejudice to the Respondent.
[65] The Tribunal noted that there is an expectation that applicants move in an expeditious manner to avoid prejudice to the respondents.
[66] The Tribunal found that the Applicant alleging that she was terminated on May 18, 2011, would suggest that some incident or decision occurred that resulted in her termination on that date. The Tribunal found that this would expand the scope of these proceedings and would prejudice Ryerson, who “would be required to do extensive new research and file a revised Response”. (para. 13)
[67] At para. 15, the Tribunal found:
As well the Applicant has not provided any details that could connect a decision or incident on May 18, 2011 to grounds of sex, disability and reprisal. I find that the Applicant has no reasonable prospect of demonstrating that she was terminated on May 18, 2011.
Analysis
[68] In our view, the Tribunal’s decision is reasonable as it considered the following relevant factors in respect of the application of s. 34(2) of the Code:
- The stage at which the request to amend was made
[69] The timing of the proposed amendment was more than 5.5 years following the decision to deny tenure, and there was potential prejudice to the Respondent having regard to the passage of time and the death of a likely witness. Pursuant to s. 34 of the Code, the Tribunal considered the reasons for the amendment, timing and prejudice and relied on B.M. v. Cambridge (City), 2009 HRTO 954.
[70] The Tribunal properly applied the principle set out in Shakhnazarov v. George Brown College, 2011 HRTO 1917, where the Tribunal held that applicants were expected to act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them.
- The nature of the amendment
[71] In addition, the Tribunal was reasonable in holding that the Applicant had not provided details of any further decision that was made or any event that occurred on May 18, 2011 that resulted in the termination on that date. The termination of her employment on May 18, 2011 was the consequence of the denial of tenure on March 10, 2011 which was upheld by the Vice Provost in a letter dated April 29, 2011 and communicated to her on May 3, 2011.
- Whether there would be substantial prejudice to other party
[72] If the amendment had been permitted, Ryerson would have suffered substantial prejudice as it would have had to deal with another array of issues including the nature of pre-tenure and tenure employment, collective agreement provisions dealing with faculty employment, all past tenure settlements, and all settlement discussions during the Applicant’s own tenure arbitration.
[73] Pursuant to Rule 1.7(c), the Tribunal has wide discretion in determining whether to grant a request to amend an application. In addition, given the enhanced deference given to specialized Tribunals dealing with procedural issues, in our view, the Tribunal’s decision to refuse the Request to Amend was reasonable.
Conclusion
[74] For these reasons, the application for judicial review is dismissed.
[75] At the hearing, the parties agreed on the appropriate costs for the successful party. Accordingly, the Applicant shall pay costs in the amount of $5,000 to Ryerson.
Lederman J.
Kiteley J.
Doyle J.
Released: 2018/
CITATION: Okouneva v. HRTO and Ryerson University, 2018 ONSC 374
DIVISIONAL COURT FILE NO.: 194/17
DATE: 2018/02/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederman, Kiteley and Doyle JJ.
BETWEEN:
GALINA OKOUNEVA
Applicant
– and –
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO AND RYERSON UNIVERSITY
Respondents
REASONS FOR JUDGMENT
Justice S. Lederman
Justice F. Kiteley
Justice A. Doyle
Released: 2018/02/22