Chun and the University of Toronto settles complaint
by S. Pieters, B.A.
On July 24, 2000, the Ontario Human Rights Commission rendered a retrograde and regressive decision in a matter involving the Chun v. University of Toronto (July 24, 2000) .
The Section 36 Decision reads as follows:
Dr. Kin-Yip Chun
v.
University of Toronto and Professor Adel Sedra, Professor Derek York, Professor Marsha Chandler and Professor Michael WalkerFile No. TC002300A
Pursuant to subsection 36(2) of the Human Rights Code, the Commission has decided not to refer the subject matter of this complaint to the Board of Inquiry for the following reasons:
1.There is insufficient evidence to indicate that the complainant was subjected to unequal treatment and harassment in employment because of race, colour, ancestry, ethnic origin and place of origin.For the above reasons, the Commission is of the view that the evidence in this matter does not warrant referral of the subject matter of the complaint to the Board of Inquiry. Approved:
2.There is no evidence to indicate that actions of reprisal were taken against the complainant because of the filing of his human rights complaint.
3.There is insufficient evidence to indicate that a poisoned work environment existed for the complainant or for other persons of Chinese ancestry who worked with the respondents.
4.There is insufficient evidence to indicate that the complainant was discriminated against based on a prohibited ground of discrimination in any of the four tenure-stream competitions to which he applied.
5.There is insufficient evidence to indicate that the respondents used discretionary criteria and practices in the competitions which adversely affected the complainant and other racial minority persons.
6.There is insufficient evidence to indicate the existence of systemic discrimination against racial minority persons that contravenes the provisions of section 11 of the Code.
Keith C. Norton Q.C., B.A., LL.B.
Chief Commissioner
Date: July 24.2000
The procedures employed by the Commission in its decision making process, especially when it renders a negative decision, currently denies complainants any semblance of procedural fairness or natural justice, makes a mockery of the human rights process and put into question the institutional credibility and integrity of the Ontario Human Rights Commission.
New evidence are placed before the Commissioners by Commission staffers and are considered by the Commissioners in reaching a decision, without the complainants being apprised of this new evidence and/or given an opportunity to respond.
The Commission staffers pressuring human rights Commissioners to reject well-founded human rights complaints based on irrelevant factors. We now have direct evidence that Commissioners are deciding a case on a new ground [such as cost factor for the Commission or whether the case is of "strategic importance" if the case were to proceed], factors not raised in the case analysis, without the complainant being given an opportunity to respond.
The Chief Commissioner meets privately with Senior human rights comission bureaucrats, including some of those who are respondents in human rights complaints, in "brief the Chief" meetings, in order to discuss the merits of complaints without human rights litigants being apprised of the discussions that took place or given an opportunity to respond.
Most distressingly is the fact that human rights officials at the Commission usually interfere with the decisions of the Commissioners.
The Commission's members are not the only participants in a decision under sections 34, 36 or 37 of the Code. The human rights staffers have hijacked the process and forces their views down the throats of the Commissioners - instead of leaving the Commissioners to deliberate based on the Case Analysis and the responding submissions of the parties. This simply means that Commissioners deliberately and/or negligently have abdicated their responsibility to decide the cases themselves.As Mr. Justice Robert Sharpe of the Ontario Court of Appeal recently wrote
"[T]he reasons offered by the Commission do not shed any light or any meaningful light as to why the Commissioners arrived at a negative decision. Complete disclosure of the file and what was said by staff at the Commission meetings would shed light on why the complaint’s rights were brought to an end."
As well, we now learn that decisions sent out by the Commission rarely reflects what was actully discussed in the Commission's meeting or decisions taken in the meetings. In a word, complainants are given boiler plate negative decisions created by legal staff at the Commission that does not reflect the true nature of the reasons for the Commission order - which shows a classic bias against human rights complainants, especially those who complaints about racism.
As I noted in a previous article in commeration of the International Day for the Elimination of Racial Discrimination:
In Ontario, the Ontario Human Rights Code has been the main legislative vehicle in this regard. However, the Ontario Human Rights Commission have not focused on eliminating systemic racial discrimination...Employers, Service Providers, and Personal Respondents who discriminate on the basis of race have all realized that, at the Commission, the failure of the Commission to exercise its mandated under sections 28 and 29 (f), (g) and (h) of the Code and the reluctance of the Human Rights Commission to appoint Boards of Inquiry works in their favor. In such cases even if perpatrators of racial harassment and discrimination are reported to the Human Rights Commission there is no justice for complainants.
This is unbridled institutionalized racism, unfettered and undeniable - which is permitted and promoted by the Government of Ontario and the Ontario Human Rights Commission.
This situation is intolerable and inexcusable especially in light of the quasi-constitutional rights in the Code and constitutional rights to equality in the Charter of Rights and Freedoms. ..
The Commission's shameful treatment of Dr. Chun is not new. Recall that it is the same Human Rights Commission that meted out similar treatment in race based cases which were later substantiated such as Wei Fu v. Ontario Government Protective Services (1985), 6 C.H.R.R. D/2797 (Ont. Bd. of Inquiry); Naraine v. Ford Motor Company; Pieters v. Ministry of the Solicitor General and Correctional Services to name but a few.
Given the disgraceful conduct of the Commission, we suggest the following:
Apologize to racial minority communities for the failure to effectively, efficiently, and purposely interpret and enforce the Code and undermining our dignity and worth. Create a Race Relations division as contemplated by section 28 of the Code "to perform any of the functions of the Commission under clause 29 (f), (g) or (h) relating to race, ancestry, place of origin, colour, ethnic origin or creed that are referred to it by the Commission and any other function referred to it by the Commission." Apologize for the harm done to racial minorities through informed inaction and complacency towards employers and services providors who are racist, acknowledging that such inaction has worked against the public interest, undermined the enforcement of human rights in Ontario and renders the importance of human rights and equality rights in our society a mere illusion. Implement the 1994 Guidelines and Recommendations For Dealing with Race Cases from Intake to Board of Inquiry, and make it publicly accessible on the Commission's website as is the case with all other Commission's policies and guidelines. Agree that no race based cases that raises personal, systemic and institutionalized racism would "not be dealt" with under section 34 of the Code. Strenghten the Commission and give it the tools to effectively combat personal, systemic and institutionalized racism which is virulent in our society.
The Commission by its actions and deeds have lost institutional credibility as an institution willing and able to deal with the issues that affect historic disadvantaged persons in Ontario.
Keith Norton and the Commissioners at the Ontario Human Rights Commission should do the right thing and resign.
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