CITATION: Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150
DIVISIONAL COURT FILE NO. 20/09 DATE: 20201009
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Penny and Kristjanson JJ.
BETWEEN:
Yu Xia Applicant
– and –
Board of Governors of Lakehead University Respondents
Self-represented Derek Zulianello for the Board of Governors of Lakehead University
-and- Human Rights Tribunal of Ontario -and- Vice-Chairs Bruce Best and Douglas Sanderson
Jason Tam for the Human Rights Tribunal of Ontario Not participating
HEARD (by videoconference): June 4, 2020
Kristjanson J.
Overview
[1] Dr. Xia seeks judicial review of three decisions of the Human Rights Tribunal of Ontario made in an application against her former employer, Lakehead University. Dr. Xia was an assistant professor at Lakehead University. When she was denied tenure and her employment was terminated in 2017, she began an application before the HRTO in which she alleged that discrimination on the basis of race, colour, place of origin, and ethnic origin played a role in Lakehead’s decision to deny her tenure and terminate her employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). She also claimed discrimination on the grounds that someone from Lakehead University contacted other universities to tell them that the applicant had not received tenure, and Lakehead conducted surveillance of her even after her employment was terminated.
[2] The first decision subject to review is the June 25, 2018 Case Assessment Direction (“CAD”) issued by Vice-Chair Douglas Sanderson. The CAD directed that the matter proceed to a preliminary hearing, to determine whether certain claims were commenced outside the statutory limitation period, and a summary hearing to determine whether the claims had no reasonable prospect of success. The second decision under review is the June 5, 2019 decision of Vice-Chair Best on the combined preliminary/summary hearing. The Vice-Chair dismissed Dr. Xia’s claims because some were out of time, and the remainder could not be supported by available evidence: 2019 HRTO 928 (“Initial Decision”). The third decision under review is the December 5, 2019 decision of Vice-Chair Best refusing to reconsider the Initial Decision: 2019 HRTO 1569 (“Reconsideration Decision”). In this decision, “HRTO” refers to the respondent Human Rights Tribunal of Ontario continued by s.32 of the Code, and “Tribunal” refers to the adjudicative decision-makers.
[3] Dr. Xia is seeking to set aside the CAD, the Initial Decision and the Reconsideration Decision and to remit the matter to the HRTO for a full hearing. She asserts that the decisions are unreasonable, and the CAD violated her right to procedural fairness. Dr. Xia also requests that the Divisional Court issue declarations that HRTO personnel “breached the standard of care” and violated her section 2(b), 7 and 15 rights under the Charter of Rights and Freedoms, as well as an order that Lakehead pay compensation for violating her human rights. For reasons set out below, this application for judicial review is dismissed.
Background Facts
[4] Dr. Xia was appointed to the position of assistant professor at Lakehead’s Faculty of Business Administration on a probationary basis in August 2011. At Lakehead, probationary appointments have 6-year terms, after which an assistant professor is either appointed to a tenured position or terminated. An assistant professor appointed on a probationary basis may apply for tenure and promotion to the rank of associate professor. These applications are considered and disposed of by the Promotion, Tenure, and Renewal Committee (“PTR Committee”).
[5] Dr. Xia applied for tenure and promotion to the position of associate professor in 2013 and again in 2014. Both applications were denied by the PTR Committee.
[6] In fall 2016, Dr. Xia applied for tenure and promotion to the position of associate professor a third time. The PTR Committee denied her application on the bases that she had failed to meet standards for teaching quality and administrative service. Because Dr. Xia’s 6-year probationary term was ending, and her application for tenure and promotion was denied, Dr. Xia’s employment with Lakehead was terminated effective June 30, 2017.
[7] On July 19, 2017, Dr. Xia commenced an application to the HRTO in which she claimed that Lakehead had violated her rights under the Code in denying her tenure and dismissing her from employment, advising other universities that she had been denied tenure, and conducting surveillance.
[8] After reviewing the application materials, HRTO Vice-Chair Sanderson issued a CAD on June 25, 2018 directing the matter be set down for a combined summary/preliminary hearing. The issue on the preliminary hearing was whether all or part of the application should be dismissed for delay, because the claims were commenced beyond the one-year limitation period in the Code. The issue on the summary hearing was whether all or part of the application should be dismissed as there was no reasonable prospect for success.
[9] The summary/preliminary hearing was held on January 25, 2019. After the hearing but before the decision was rendered, Dr. Xia submitted a Request for an Order During Proceeding in which she sought to make substantial amendments to her application, adding further allegations that Lakehead faculty were racist and were monitoring her in her office, at home and in public. While originally claimed as discrimination, in her request to amend the applicant characterized this surveillance as sexual harassment, sexual solicitation and reprisal.
[10] In the Initial Decision, the Tribunal found no reasonable prospect that Dr. Xia could adduce evidence demonstrating that the decision to deny her tenure was discriminatory, and there was no reasonable chance of success on her other claims. The Tribunal also found that claims made about incidents that occurred prior to July 2016 (one year prior to the filing of her application) were not begun in a timely manner. In the result, all of Dr. Xia’s claims were dismissed.
[11] In the Reconsideration Decision, the Tribunal found that Dr. Xia had failed to establish the grounds for reconsideration under Rule 26.5 of the HRTO’s Rules of Procedure, and dismissed the reconsideration request.
Jurisdiction
[12] The Divisional Court has jurisdiction to hear this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
The Issues on this Application
[13] The applicant raises these issues:
(1) The Tribunal CAD decision denied her procedural fairness, by referring the matter to a preliminary/summary hearing and causing excessive delay.
(2) The Tribunal’s Initial Decision to dismiss her claims because they had no reasonable prospect of succeeding was unreasonable.
(3) The Tribunal’s Initial Decision to dismiss some of her claims for delay on a preliminary basis was unreasonable.
(4) The Tribunal’s Reconsideration Decision was unreasonable.
(5) The Tribunal’s decisions were contrary to the Charter of Rights and Freedoms, and how it reached those decisions was negligent.
The Standard of Review
[14] Section 45.8 of the Code provides that a decision of the Tribunal “is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable”.
[15] Dr. Xia and Lakehead submit that the standard of review to be applied is reasonableness, relying in part on Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 (Div. Ct.) at paras. 37, 45; see also Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 at paras. 77-88.
[16] On the other hand, the HRTO submits that the Divisional Court is bound to apply the legislated standard of review of patent unreasonableness, by which it means the specific and distinct rules associated with the patent unreasonableness standard as set out in the pre-Dunsmuir case law. The HRTO submits that the legislated standard requires deference unless a decision is “clearly irrational” and “evidently not in accordance with reason.” I do not agree, for the reasons set out in the Intercounty Tennis Association and Association of Ontario Midwives cases discussed above. The standard of review is reasonableness as explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (SCC).
[17] There is no standard of review analysis on the procedural fairness issues raised: a decision is either procedurally fair, or it is not.
No Failure of Procedural Fairness
[18] Dr. Xia argues that the CAD which ordered that her application proceed to a combined preliminary/summary hearing “prejudiced the applicant and affected the final disposition of the application.” While the HRTO’s Practice Direction on Hearings states that an application will proceed to a hearing if mediation fails, Dr. Xia’s application was not directed to a full hearing after mediation, but was directed to the preliminary/summary hearing. Dr. Xia also argues that the time between when she filed her application and the final disposition constitutes unreasonable delay.
[19] Lakehead submits that the 2018 CAD gave clear notice of both the Tribunal’s reasons for directing the combined preliminary/summary hearing, and the tests Dr. Xia had to meet. The HRTO also conducted the hearing in a fair, just and expeditious manner in accordance with both the Code and the HRTO Rules of Procedure.
[20] Section 40 of the Code provides that:
The Tribunal shall dispose of applications made under this Part by adopting the 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.
[21] Section 43 (1) of the Code provides that the HRTO may make rules governing the practice and procedure before it. The HRTO has established Rule 19A, which provides that the Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on whether an application should be dismissed in whole or in part because there is no reasonable prospect of success. The Tribunal has also established a Practice Direction on Summary Hearing Requests. A preliminary hearing is any hearing that is scheduled before a merits hearing occurs. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 SCC 699, at para. 27, the Supreme Court held that in evaluating fairness, a court must give weight to the choice of procedures made by a tribunal and its institutional constraints.
[22] Litigants do not have an absolute right to a full merits hearing on every HRTO application. The summary and preliminary hearing processes are essential to the HRTO system, including by ensuring that issues raised are within the jurisdiction of the HRTO, and have some prospect of success. Fairness, effectiveness and efficiency for this high-volume tribunal mean that the resources of the parties, and of the HRTO, should be directed to issues which require a merits hearing. When the application suggests that a preliminary or summary hearing may streamline a case, there is no denial of procedural fairness by first holding a preliminary or summary hearing rather than proceeding to a full merits hearing.
[23] As held by Associate Chief Justice Marrocco in Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840 at para. 12, referring to Rule 19A and the summary hearing model:
This Rule is entirely appropriate for the Tribunal or any tribunal for that matter. The Tribunal is attempting to facilitate access to justice. It cannot use filing or other fees as a gatekeeping mechanism. At the same time the Tribunal does not have unlimited resources. Accordingly, one person’s access to the Tribunal can only come at the expense of another’s, unless the Tribunal has a very light case load, which it does not. Rule 19A is a responsible and rational attempt by the Tribunal to prudently use its limited resources to facilitate access for persons bringing applications that might reasonably succeed.
[24] The CAD provided the applicant with notice of what was in issue and granted appropriate participatory rights to the applicant.
[25] The HRTO provided the self-represented applicant with procedural rights and information to support her in the exercise of those rights. The CAD identified the issues, processes and tests to be applied on both the summary and preliminary hearings. The CAD allowed the filing of additional documents before the hearing and explained that while there would be no witnesses on the summary hearing portion, witnesses could be called to testify on the delay issue provided that witness lists and summaries of intended evidence were provided. The CAD also permitted the use of case law and set an appropriate schedule for the exchange of all documents and information. The CAD directed the parties to consult other HRTO publications for more information on the summary hearing process and attached the FAQ document related to Summary Hearings at the HRTO.
[26] Dr. Xia cites delay in proceeding to the merits hearing, and delay caused by what she states was the late decision to refer to a preliminary/summary hearing. While at times excessive delay may breach the right to procedural fairness, the focus is on whether excessive delay so prejudices the individual that it would be impossible or unfair for the applicant to present or defend her case, or that it would be an abuse of process to proceed: see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 (SCC). The delay here was not so unreasonable, inordinate or oppressive as to taint the proceedings (see Blencoe, para. 121).
[27] The decision to refer the application to a preliminary/summary hearing followed the HRTO Rules of Procedure and the Code. The preliminary/summary hearing was conducted with appropriate notice and the applicant was afforded appropriate participatory rights. The delay did not breach procedural fairness. There is no basis for finding that the applicant was denied procedural fairness
The Decision to Dismiss For No Reasonable Prospect of Success Was Reasonable
[28] Dr. Xia claimed that Lakehead’s denial of her tenure application violated her rights under the Code. The matter was set down for a summary hearing. The Tribunal identified the purpose of the summary hearing as whether there was likely to be any evidence that may be reasonably available to the applicant to connect the allegedly unfair treatment with the Code’s protections against discrimination, since the Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.
[29] The Tribunal applied the test for summary hearings established in the HRTO jurisprudence that “for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.”
[30] The Tribunal then considered all of the evidence on the three major categories of claims – tenure, solicitation and surveillance.
[31] Dr. Xia claimed that she had overheard other faculty members making racist comments many times during her time at Lakehead and posited that these comments revealed that racism played a role in Lakehead’s decisions, particularly its decision to deny her tenure in 2016. The Tribunal found that the applicant was unable to point to any evidence that would support her claim that the denial of tenure related to any Code ground. The Tribunal found as a fact that the applicant’s claims that certain individuals, who she alleges made discriminatory comments in the past, influenced the decisions of the 2016 tenure committee, were “pure speculation.” The Tribunal found that the applicant could not point to any evidence that could connect the denial of tenure in the 2016 tenure process to the untimely allegations respecting the alleged past discriminatory comments by individuals not part of the 2016 tenure process.
[32] Dr. Xia also claimed that Lakehead had contacted other universities, without prior solicitation, to advise them not to hire her. This is the solicitation claim. The Tribunal held that, even accepting the applicant’s claim that the respondent contacted other universities to advise them that the applicant was no longer employed and had not received tenure, there was no evidence that would support a claim that this was done for any discriminatory reason. Her only evidence was that she overheard members of the interview panels at other institutions saying that they were aware she had not received tenure.
[33] Dr. Xia also alleged that Lakehead and faculty members were recording her bank and credit card transactions, monitoring her private phone calls and internet activities, and constantly watching her both on campus and at home, even after her termination. This is the surveillance claim. In February 2019, after the summary hearing, the applicant expanded on her allegations that she had been subject to surveillance by hidden cameras, claimed that the surveillance continued until at least August 2018. She also sought, for the first time, to characterize the alleged surveillance as being sexual harassment and sexual solicitation. The Tribunal considered all the evidence and concluded that the applicant had no evidence she could call at a hearing to establish that any such surveillance was conducted by Lakehead, nor, if it was, how such surveillance related to any ground of discrimination. In addition, Dr. Xia’s employment with Lakehead University had ended in June 2017 and there was no ongoing employment relationship. As a result, it was not clear under which Code provision the more recent allegations of ongoing surveillance would fall.
[34] As to each of the claims, the Tribunal’s findings with respect to the evidence or lack thereof were reasonable and deserving of considerable deference by this court. As put at para. 125 of Vavilov, “It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.” The Tribunal’s “reasoning process and the outcome” reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83, 85.
The Decision to Dismiss for Delay was Reasonable
[35] Dr. Xia argues that the Tribunal was unreasonable in dismissing some of her claims for delay. Subsection 34(1) of the Code establishes a one-year limitation period for filing a claim following an incident of discrimination and provides that if a claimant is alleging a series of incidents, the limitation period applies to the last incident in the series. Section 34(2) of the Code gives the Tribunal discretion to allow an application to proceed after the expiry of the one-year limitation period if the Tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to another party.
[36] As for the alleged incidents which occurred before July 2016, one year before the filing of Dr. Xia’s application, the Tribunal found that the pre-July 2016 incidents cited by Dr. Xia “do not form part of a series of events” and were therefore not properly before the HRTO. It also held that there must be at least one timely incident which can be considered part of a series, and that an allegation dismissed as having no reasonable prospect of success cannot form part of a series. HRTO jurisprudence has confirmed that an allegation dismissed as having no reasonable prospect of success cannot be held to be an incident in a series for the purposes of determining whether a claim falls within the limitation period (see Chappell v. Securities Canada Limited, 2012 HRTO 874, and Garland v. Cnausa-CPS, 2012 HRTO 1309).
[37] The Tribunal held that Dr. Xia had not incurred the delay in good faith. The Tribunal found as a fact that the applicant’s explanation for the delay in raising the allegations after the one-year limitation period was that the applicant did not wish to raise the issues while she was still employed. The Tribunal applied its jurisprudence, that fear of reprisal does not generally constitute a good faith reason for a delay in filing an application, citing Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2013 HRTO 1756 at paragraph 39. The Tribunal also found that to the extent that Dr. Xia claimed she did not know about her rights, being unaware of one’s rights does not establish good faith under s. 34 (2), as that term has been interpreted by the Tribunal. This approach is consistent with the Tribunal’s jurisprudence and has been accepted by this Court in Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174 (Div Ct) per Sachs, J. at paras. 8-9.
[38] The Tribunal’s decision dismissing for delay the claims relating to pre-2016 incidents was reasonable. The Tribunal’s “reasoning process and the outcome” reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83, 85.
The Tribunal’s Decision Declining Reconsideration Was Reasonable
[39] Dr. Xia sought reconsideration of the decision. The Tribunal declined to grant the request for reconsideration. Rule 26.5 of the HRTO’s Rules of Procedure provides that a request for reconsideration may only be granted where:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
[40] Reconsideration is a discretionary decision to which this court owes deference. The Tribunal reasonably concluded that Dr. Xia had established none of the grounds for reconsideration in Rule 26.5 and dismissed her request. The Tribunal reasonably justified its decision that new facts relied on by Dr. Xia were both outside the time frame of the application and incapable of affecting the result of the summary hearing. The Tribunal reasonably held that there was no relevant conflict in the jurisprudence. The Tribunal’s “reasoning process and the outcome” reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83, 85.
Issues Not Raised Before the Tribunal
[41] Dr. Xia submits that the Tribunal’s decisions violated her right to equal treatment contrary to s. 15(1) of the Charter of Rights and Freedoms, and its failure to promptly post the Initial Decision online violated the open court principle protected by Charter s. 2(b). Further, the Tribunal’s failure to recognize the harms caused by Lakehead’s invasion of her privacy constituted an infringement of s. 7 of the Charter. Dr. Xia also argues that the Tribunal’s handling of her claims was negligent. The “extraordinarily long delay in this case”, when the HRTO was aware of Lakehead’s reprisals against her, breached the duty of care owed by the HRTO.
[42] The HRTO has jurisdiction to deal with Charter issues. A court has the discretion to refuse to deal with an issue that could have been raised before the administrative decision-maker but is not raised until judicial review. The rationale for declining to hear such an argument rests on many considerations: showing respect for the legislative decision to confer first line responsibility on the administrative decision-maker to make such decisions; obtaining the benefit, for the court on judicial review, of a decision of the specialized decision-maker on the issue; avoiding any unfair prejudice to the responding party; and ensuring that there is an adequate evidentiary record to decide the question (Alberta (Information and Privacy Commissioner) v. Alberta Teachers Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22-26). Considering these factors, the section 7 and section 15 Charter claims should have been raised before the Tribunal and the court will not deal with them for the first time on judicial review.
[43] On the s. 2(b) Charter claim, no litigant has a Charter s. 2(b) right to have a decision affecting her posted online at any time. While it is best practice for adjudicative bodies to publish decisions, there are many handwritten endorsements and oral decisions which are never published. The decision to submit to a publisher lies with the author of the decision, and presumably a publisher has discretion whether to publish.
[44] Finally, the applicant claims damages in negligence for the Tribunal’s decision. Damages are not a remedy on judicial review. Negligence is a tort to be raised in an action for damages, not as a new issue on judicial review.
Conclusion
[45] The judicial review is therefore dismissed, with costs on a partial indemnity basis in the requested amount of $5,000.00, inclusive, payable by the applicant to the respondent.
Kristjanson J.
I agree _______________________________
H. Sachs J.
I agree _______________________________
Penny J.
Date of Release: October 9, 2020
CITATION: Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150
DIVISIONAL COURT FILE NO. 09/20 DATE: 20201009
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
H. Sachs, Penny and Kristjanson JJ.
BETWEEN:
YU XIA Applicant
– and –
BOARD OF GOVERNORS OF LAKEHEAD UNIVERSITY, HUMAN RIGHTS TRIBUNAL OF ONTARIO VICE-CHAIRS BRUCE BEST AND DOUGLAS SANDERSON Respondents
REASONS FOR JUDGMENT
Kristjanson J.
Date of Release: October 9, 2020