Carlson v. Vancouver Career College

Date Issued: September 27, 2012 File: 10193 Indexed as: Carlson v. Vancouver Career College and another, 2012 BCHRT 331 2012 BCHRT 331 (CanLII)

IN THE MATTER OF THE HUMAN RIGHTS CODE R.S.B.C. 1996, c. 210 (as amended) AND IN THE MATTER of a complaint before the British Columbia Human Rights Tribunal B E T W E E N: Natasha Carlson COMPLAINANT A N D: Vancouver Career College and Dino Cabalfin RESPONDENTS

REASONS FOR DECISION APPLICATION TO DISMISS: Section 27(1)(c)

Tribunal Member: On her own behalf: Counsel for the Respondents:

Enid Marion Natasha Carlson Scott McCann Lou Poskitt

INTRODUCTION [1]

Ms. Carlson filed a complaint against Vancouver Career College (“College”) and

of a service customarily provided to the public, on the basis of mental disability, contrary to s. 8 of the Human Rights Code. [2]

The Respondents deny any discriminatory conduct and apply to dismiss the

complaint pursuant to ss. 27(1)(b), (c) and (d)(ii) of the Code. [3]

In order to put my decision in context, I will briefly review the background to the

complaint as set out in the materials filed by the parties with the Tribunal. In doing so, I make no findings of fact. Background to the Complaint Ms. Carlson’s Perspective [4]

Ms. Carlson was originally a student in a licensed practical nursing program at

another educational institution. She did not complete that program. She says that she had an “A” average and 100% attendance. She provided no explicit explanation in her complaint as to why she did not complete the program at that institution, though made reference to being “targeted”, bullied and belittled while enrolled in that program. [5]

She subsequently applied to complete the program at the College. She alleges that

while she was initially accepted into the College’s program, Mr. Cabalfin told her to leave and kept stating that “there was something wrong with her.” Specifically, she says that Mr. Cabalfin stated he did not want her at the College and that “there must be something wrong with [her] that she didn’t complete the course at [the other institution].” She alleges that he also said that he does not accept students from that institution and that she was the problem because she was not able to complete her course of studies at that institution. She further says that he mentioned she might be put on a “learning contract.” [6]

Ms. Carlson believes that Mr. Cabalfin, by these comments, was insinuating that

she was mentally disabled. She denies she has a mental disability and says that she felt demeaned, bullied and harassed.

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Dino Cabalfin (collectively the “Respondents”), alleging discrimination in the provision

[7]

Ultimately, Ms. Carlson did not complete the courses she required to finish the

program.

[8]

Mr. Cabalfin is the College’s Campus Director. One of his responsibilities is to

authorize new student enrolments. As such, he reviews and approves each application for enrolment. Prospective students are interviewed by Mr. Cabalfin and a Program Coordinator. They are also required to complete an enrolment test. Mr. Cabalfin has the ultimate authority to approve a candidate for admission. [9]

The College offers a Practical Nursing Generic Program (the “Program”), which

consists of three semesters completed over 51 weeks. Students are expected to complete one practicum at the end of each semester. [10]

In October 2011, Ms. Carlson inquired about the Program. She explained to an

Admissions Representative that she had been unsuccessful in her attempt to complete a similar nursing program at one of the College’s main competitors. Therefore, she was hoping to complete her final semester at the College. [11]

Approximately six weeks later, Mr. Cabalfin contacted Ms. Carlson and, since he

was scheduled to be out of the country for several weeks, arranged to meet with her in early January 2012 to discuss her potential admission to the College. He advised her that she would be interviewed at this time by both him and a Program Coordinator, after which a decision would be made about her potential enrolment. [12]

Mr. Cabalfin was out of the country from November 30, 2011 to December 16,

2011. He says he did not contact Ms. Carlson during this period. [13]

On November 28, 2011, Ms. Carlson again contacted an Admissions

Representative to discuss the Program. As a result of what the Respondents describe as miscommunication between the Admissions Representative and Program Coordinator, the Program Coordinator concluded that Mr. Cabalfin had changed his mind about how to proceed with Ms. Carlson’s application. The Program Coordinator met with Ms. Carlson, and decided to grant her admission to the Program.

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The Respondents’ Perspective

[14]

On about December 5, 2011, Mr. Cabalfin received an email from the Program

Coordinator indicating that Ms. Carlson had been admitted into the second semester of

advising that he was to meet with Ms. Carlson early in the New Year and inquiring how she had obtained admission into the Program without his approval. In that email he stated: This is the student that got kicked out of [school], I was to meet with her in the New Year regarding a later start date. All signs pointed to her not being admitted, please explain to me how after mentioning her in our meetings she was able to get through our systems of communication? [15]

Mr. Cabalfin decided to meet with Ms. Carlson after his return from vacation. He

says that he was concerned that the Program Coordinator had not conducted an in-depth review of the reason that Ms. Carlson left the other program. He was also concerned that she had pursued a second application to the Program after having scheduled a meeting with him in January. [16]

Mr. Cabalfin met with Ms. Carlson on December 19, 2011. During this

conversation, he says he inquired why she was not completing her program at the other educational institution, since enrolling in the College’s Program required her to repeat her second semester. He says that she was evasive to this inquiry. Ms. Carlson did not specifically dispute this in her response to the application to dismiss. [17]

Mr. Cabalfin denies suggesting there was anything wrong with Ms. Carlson, or

insinuating that she was suffering from a mental disability in any form or manner. He submitted the contemporaneous notes taken by his Student Services Assistant of that meeting. The notes contain no reference to any of the statements that Ms. Carlson alleges Mr. Cabalfin made during that meeting. [18]

After the meeting, Mr. Cabalfin says that he spoke with another senior official at

the College, and it was determined that Mr. Cabalfin, like he does with other applicants, should assess Ms. Carlson’s suitability for admission by considering her history at the other educational institution and by conducting a formal interview with her. Ms. Carlson’s enrolment would be revoked until that assessment had been completed.

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the Program starting on December 19, 2011. He immediately responded to the email

[19]

On December 21, 2011, Mr. Cabalfin met with Ms. Carlson in his office. He

denies pulling her out of class. He advised her that her enrolment was revoked until he

assessment involved understanding why she was not completing her degree at the other institution. Mr. Cabalfin denies making any discriminatory comments to Ms. Carlson during this discussion. [20]

The Respondents say that Ms. Carlson agreed to meet with Mr. Cabalfin as

originally scheduled in January 2012. [21]

Early in January 2012, Ms. Carlson requested a refund of her registration fee. The

College complied with this request. Since Ms. Carlson sought a refund, Mr. Cabalfin concluded she had decided to not pursue enrolment at the College and did not subsequently interview her. He says that at no point did he determine whether she was or was not a suitable candidate for admission. Rather, he says the process was not completed due to her decision to seek a refund. [22]

In her response to the application to dismiss, Ms. Carlson submitted several

emails that she had written to various people during the October 2011 to January 2012 period, including emails about the conversations she had with Mr. Cabalfin. In one email, she describes Mr. Cabalfin saying to her that there must be a problem with her because she failed two weeks before graduation at the other institution and he was going to “get to the bottom of this.” He also advised her that he was going to call the other institution. Analysis and Decision [23]

I will address the application to dismiss under s. 27(1)(c) of the Code. When

assessing such an application, the role of the Tribunal is to determine whether the material before it justifies the time and expense of a full hearing because “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence:” Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, para. 22, and also paras. 9 and 27; J. J. v. School District No. 43 (Coquitlam), 2011 BCCA 343, paras. 34-35; Bell v. Dr. Sherk and others, 2003 BCHRT 63, para. 28; Wickham and Wickham v. Mesa

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was satisfied that she was a strong enough candidate for the Program, and that part of this

Contemporary Folk Art and others, 2004 BCHRT 134, paras. 11-12; and Gichuru v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 BCCA 191, para. 31. In Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49, the B.C.

Court of Appeal described the Tribunal’s role under s. 27(1)(c) as follows: It is useful to describe the nature of an application under s. 27 of the Code to provide context for the appellants’ arguments. That provision creates a gate-keeping function that permits the Tribunal to conduct preliminary assessments of human rights complaints with a view to removing those that do not warrant the time and expense of a hearing. It is a discretionary exercise that does not require factual findings. Instead, a Tribunal member assesses the evidence presented by the parties with a view to determining if there is no reasonable prospect that the complaint will succeed. The threshold is low. The complainant must only show the evidence takes the case out of the realm of conjecture. If the application is dismissed, the complaint proceeds to a full hearing before the Tribunal. If it is granted, the complaint comes to an end, subject to the complainant’s right to seek judicial review: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, 223 B.C.A.C. 71, at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, 285 B.C.A.C. 276 at para. 31. (para. 27) [25]

In reaching my conclusion, even though I do not refer to it all, I have considered

all the material filed by the parties, including the affidavit evidence and documents. Having done so, I am persuaded that the complaint has no reasonable prospect of success and the application to dismiss is granted. My reasons are as follows. [26]

I have considered that there is a conflict in the material regarding whether Mr.

Cabalfin made the alleged statements. However, this conflict does not mean that the Tribunal is precluded from granting the application to dismiss. As noted in Bell v. Sherk, 2003 BCHRT 63: In my view, the fact that a complaint raises issues of credibility is not, in and of itself, sufficient reason to deny an application to dismiss. Credibility is a factor in virtually every human rights complaint. Tribunal members, however, when considering the information which is before them in an application to dismiss, are not making findings of credibility per se, but rather are evaluating all of the information before them in order to determine whether there is a reasonable prospect the complaint will succeed. (para. 28)

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[24]

[27]

In this case, Ms. Carlson denies she has a mental disability. Her complaint is

premised on her belief that Mr. Cabalfin perceived her to have a mental disability and

Mr. Cabalfin’s delay in speaking with her and his alleged statements that “there must be something wrong with her”, that he “doesn’t want her here”, that he doesn’t accept students from the other educational institution, and that she might be placed on a “learning contract.” She perceives these statements to insinuate that she suffers from a mental disability. [28]

While I appreciate the sincerity of her belief in this regard, the surrounding

context does not provide a sufficient basis to move her complaint out of the realm of conjecture. In my view, even if Mr. Cabalfin made the disputed statements, when considering the context as a whole, the statements in and of themselves are insufficient to establish a contravention of the Code. In particular, the alleged statements do not give rise to a reasonable inference that Mr. Cabalfin perceived Ms. Carlson to have a mental disability and that, because of that perception, he denied her admission to the College. [29]

It would not be unreasonable for Mr. Cabalfin to assume there was something

“wrong” or a problem, and to inquire what had happened at the prior institution that had caused Ms. Carlson to leave the program two weeks before graduation. Such information was relevant to her assessment as a suitable candidate for enrolment at the College. For example, there are numerous reasons why a student might not complete a program, including disciplinary reasons. [30]

In my view, the materials reveal an admissions process gone wrong,

miscommunication on both sides, and an incomplete assessment by Mr. Cabalfin about Ms. Carlson’s suitability for admission. It is not disputed that Ms. Carlson had agreed to meet with Mr. Cabalfin in January 2012, and that, unbeknownst to Mr. Cabalfin, she obtained an interview with a Program Administrator who then accepted her into the Program. It is also not disputed that Mr. Cabalfin is the individual with the ultimate authority to make an admission decision. [31]

As well, it is not disputed that Mr. Cabalfin subsequently met with Ms. Carlson

and inquired about the reason she left the other program. In her response to the

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consequently thwarted her enrolment in the Program. The basis for her belief includes

application, she does not dispute that she did not provide specific information or a substantive explanation to him at that time, though she does say that she had previously

had corrected an instructor. [32]

Mr. Cabalfin says that he lacked the necessary information to determine Ms.

Carlson’s suitability, and revoked her acceptance into the Program. He says they agreed to meet in January as previously arranged for a more in-depth interview. Ms. Carlson says that Mr. Cabalfin was to call her, and when he did not call her by early January, she sought a refund of her fees. There is no indication in the materials that she pursued the meeting with Mr. Cabalfin, or sought to continue the admission process after requesting the refund. Rather, in her complaint, she refers to making calls in respect of obtaining a refund. She did not dispute, in her response to the application to dismiss, that the manner of her requests could reasonably leave the impression that she did not wish to pursue enrolment into the Program. [33]

Against this background, I am persuaded, based on a global assessment of all the

material, that Ms. Carlson has no reasonable prospect of success of establishing that the Respondents perceived her to have a mental disability and that, because of that perception, denied her admission to the College. In particular, I am not persuaded that Ms. Carlson will be able to establish that Mr. Cabalfin was referring to a mental disability when he identified a problem with her not completing her program with only two weeks to go before graduation. [34]

Having said this, it is understandable that Ms. Carlson, being elated that she was

finally accepted into the Program, felt unfairly treated when that admission was suddenly revoked by the College. However, whether Ms. Carlson’s admission was revoked in a fair manner is not a matter governed by the Code: Schnurr v. Douglas College, 2007 BCHRT 4 para. 21 (upheld on judicial review, Schnurr v. Douglas College, 2008 BCSC 1799).

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explained to the Program Coordinator that she was “bullied and targeted” because she

[35]

Absent other objective evidence, Ms. Carlson’s belief that Mr. Cabalfin perceived

her to have a mental disability is insufficient to provide the necessary factual underpinnings to succeed in her complaint. The application to dismiss pursuant to ss. 2012 BCHRT 331 (CanLII)

27(1)(c) is granted and the complaint is dismissed.

Enid Marion, Tribunal Member

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