This case involves an Aboriginal student who failed her practicum in the nursing program at Aurora College. She filed a human rights application against the College. The College claimed that her failure was a result of her inability to reach acceptable levels of competency and skill. The Student claimed that it was a result of her instructor’s harassing and discriminatory actions towards her as an Aboriginal person. The Northwest Territories Human Rights Commission conducted an investigation that concluded that there was no evidence of discrimination or harassment. The Director of the Commission dismissed the application based on lack of evidence. The student appealed to a board of adjudication, which sent the decision back to the commission for further investigation. The present case is a judicial review of the adjudicator’s decision.
The complainant claimed that the teaching methods and evaluation criteria used by the instructors who failed her were racially charged and adversely affected Aboriginal students on the basis of their Aboriginal identity. For example, she alleged that some of the criticisms of her performance in the classroom (she was abnormally quiet, passive and non-participatory) and in the hospital (she used laughter inappropriately in her interactions with a patient) were, in fact, denigrations of her cultural identity as an Aboriginal person, for whom such behaviors are appropriate. She provided names of several students who had allegedly endured similar treatment or who had been forced to drop out of the practicum. Furthermore, she claimed that Aboriginal students suffered a higher rate of dropout/failure in the nursing program than non-Aboriginal students. Finally, she implicated five instructors, some of whom had yelled at her, bullied her or harassed her. She could produce no witnesses to corroborate these last claims because, according to her, there had been no witnesses.
Without explanation, the investigator charged with her case interviewed only three of the five instructors implicated in the complaint and only one of the Aboriginal students named by the complainant. The three respondents denied all allegations of harassment, claimed that their teaching methods and evaluations techniques were racially neutral and told the investigator that there were no statistics to back up the complainant’s claim about Aboriginal dropout rates. The Aboriginal student confirmed that she had experienced similar discriminatory/harassing treatment at the hands of one of the three instructors.
The investigator determined that based upon her interviews there was no evidence indicating the existence of discrimination or harassment at the college. The Director of the Commission accepted the Investigator’s results and dismissed the application.
The adjudicator found that the Director had erred when she accepted the investigator’s analysis of the evidence for four reasons:
1) FAILURE TO TAKE SYSTEMIC DISCRIMINATION INTO CONSIDERATION.
The adjudicator determined that while the student did not explicitly evoke the term “systemic discrimination” in her application, she did, in fact, bring forward systemic issues that the commission failed to handle appropriately. For example, the commission “touched upon but failed to follow through” on the complainant’s systemic claim that more Aboriginal students than non-Aboriginal dropped out of the program. It also failed to undertake any kind of analysis of the college’s teaching practices and performance criteria used by the college in order to assess whether or not they were racially neutral and whether or not they may adversely affect Aboriginal students.
2) FAILURE TO APPLY THE CORRECT TEST TO THE EVIDENCE
The adjudicator determined that the director erred when she weighed contradictory evidence in favour of the respondent. The role of a human rights commission is not to weigh contradictory evidence (allegation/denial of allegation) or to determine credibility but to determine “whether, if the complainant’s version was accepted, that [version]would provide enough evidence to warrant a hearing” or “could be found to have merit”. Instead of conducting a prima facie discrimination test to the complainant’s evidence, the commission dismissed her evidence as non-evidence. This
3) FAILURE TO INTERVIEW WITNESSES AND OBTAIN STATISTICS
The adjudicator remarked that every human rights investigator must be thorough and neutral. In this case, the investigator failed the thoroughness test when she dismissed the complaint due to lack of evidence without exploring fully all avenues of investigation that could lead to the discovery of evidence (direct or circumstantial). Without explanation, she failed to interview many witnesses. Moreover, while noting the potential relevance and importance of statistics about the race, colour and ancestry of students and the relative success rate of Aboriginal vs non-Aboriginal students in the program would, she made no effort “to pursue that line of inquiry”. It was up to her to see whether “helpful information is available from other sources even if it is not in the form of statistics”. Interviewing Aboriginal students could have led to the discovery
Was the Adjudicator’s decision reasonable?
“In summary, having found that the reasons given by the adjudicator can stand up to a somewhat probing examination, I conclude that his decision is reasonable.” (68)
Following the adjudicator’s order, the director of the commission sent Niziol’s complaint to a board of adjudication. The adjudicator ordered that the director disclose her file to the entire board. The College appealed. The Supreme Court (Aurora College v Niziol ) determined that the adjudicator erred in making this order which could have been prejudicial to either party