Ebrahimi v. Durham District School Board, 2009 HRTO 1062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadeem Ebrahimi by his next friend Najeem Ebrahimi

Applicant

-and-

Durham District School Board and J. Clarke Richardson High School

Respondents

interim decision

Adjudicator: Michael Gottheil

Date: July 17, 2009

Citation: 2009 HRTO 1062

Indexed as: Ebrahimi v. Durham District School Board

Appearances

Nadeem Ebrahimi, Applicant ) Najeem Ebrahimi, Representative

Durham District School Board and J. Clarke )

Richardson High School, Respondents ) Kathryn Bird, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in the provision of goods, services and facilities on the grounds of race, colour, place of origin, citizenship, ethnic origin, family status and reprisal. The Application was filed on June 1, 2009, and was accompanied by a Request to Expedite pursuant to Rule 21 of the Tribunal's Rules of Procedure.

2The purpose of this Interim Decision is to address the Request to Expedite.

Nature of the Application and the Request to Expedite

3The applicant is a grade 12 student in the respondent School Board. He alleges that he was treated contrary to the Code in relation to disciplinary action taken by the respondents. Amongst other things, the applicant alleges that after he was issued a 20-day suspension from school in March 2009, the respondents failed to provide him with alternative educational arrangements, and then delayed his return to school until the beginning of June 2009. As a result, the applicant missed most of his final semester of Grade 12, and alleges his marks in two subjects were lower than they would have been, but for the respondent's allegedly improper actions.

4The background to the Request to Expedite was set out in a Case Assessment Direction dated July 8, 2009:

The applicant (represented by his brother) is a high school student, intending to enter university in the fall of 2009. At the time the Request was filed, the applicant was still completing his 2008-2009 school year. In describing the harm that would result if the Request was denied, the applicant stated that his acceptance to the Bachelor of Sciences-Biology Program at Ryerson University (Ryerson) had been withdrawn because there was no mid-term mark, due to the events described in his Application. He stated, among other things, that there was a "chance of the university to accept me only if I successfully complete my semester before September". He states that if the final outcome of the Application comes after September 2009, "it might be of no use", and he will lose one full year of school.

The Response to the Request to Expedite states, among other things, that the alleged harm of potentially losing a year is moot, in that the applicant has successfully completed Biology and Calculus. The respondents state that since the applicant has successfully completed these courses, he will not be delayed in attending Ryerson for a full year if his Request is denied. At most, they suggest, his entry into Ryerson may be delayed by one semester. The respondents state that the applicant does not identify any circumstances which would undermine the Tribunal's ability to conduct a fair and just hearing of the merits of the Application or to provide a fair and just result to the parties, if the matter were not expedited. They state that there is nothing in the circumstances that depends on the urgent resolution of this matter.

The applicant's reply to the Response states that he did not successfully complete his courses. The applicant appears to say that the marks received in the two courses for which final marks have been received are not adequate to be admitted into the Ryerson University. Although it is not entirely clear from the written submission, the applicant appears to say that his only chance of being accepted into Ryerson is if his current mark in his Calculus course is not counted. The applicant states that if the Request to Expedite is not granted, it could not only delay his entry into university, it may mean that he does not get accepted at all because of that mark.

5The Tribunal went on to say that because circumstances appeared to have changed from the time the Application and Request were filed, it was appropriate to set a teleconference hearing to hear oral submissions on the Request to Expedite. The teleconference was held on July 14, 2009.

6On the teleconference, the applicant was able to clarify a number of additional facts. He stated he was currently taking, or had completed, summer school upgrade classes in Calculus, Biology and International Business. These were the three courses he had successfully completed in June 2009, but in which he claims he received low marks as a result of having missed most of his final semester. He indicated that he has completed the upgrade class in International Business, but has not yet received his grade, though he expects to have it shortly. Likewise, he has completed his upgrade Calculus course and expects to receive his grades within a week. His upgrade Biology course will be completed by the end of July 2009.

7The applicant advised that Ryerson's website indicates that the Bachelor of Science program is not full, and the University will accept applications for enrolment in the fall 2009 semester until August 21, 2009, for any program that is not full.

8The applicant has not re-applied to Ryerson. He asserts that his current marks for the three courses he completed in June 2009 would hamper his chances to be accepted. He also asserts that even if he obtains higher marks in his summer upgrade classes, Ryerson would not look as favourably on a transcript which shows upgrade marks, as opposed to one which simply shows a single mark. Thus, in the Application, he seeks as a remedy an order amending the transcript to reflect the summer school marks as his official, final marks in those three subjects.

Decision

9In in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at paragraph 9, the Tribunal held as follows:

For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal's regular process.

10As noted above, the respondents argue that the applicant has not demonstrated the existence of any circumstances which would undermine the Tribunal's ability to fairly adjudicate the dispute. While I agree with the respondents, that is not the only basis upon which the Tribunal may exercise its discretion to expedite the processing of an application. The Tribunal may expedite an application where, for example, a party or a witness is gravely ill, or might not be available if the application is processed in the normal course. In such cases, expedition may be necessary to ensure a fair adjudication. However, circumstances which might undermine a fair adjudication of the merits is not the only reason why the Tribunal may expedite an application.

11Where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an Application, the Tribunal may exercise its power under Rule 21. This reflects the broad remedial purpose of the Code. In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal discussed this focus in the context of its power to grant interim relief. In my view, the same approach is applicable in considering whether to grant a request to expedite. The question is whether it is necessary to ensure the Tribunal is able to provide an appropriate and effective remedy, if the Application is successful.

12I also cannot accept the respondents' position that the applicant's request to have the Application expedited should be dismissed because it is based on his "personal preference" to attend university in the fall of 2009. In my view this position is without merit. Simply because an individual may have, or have had, other options, does not mean they are disentitled from pursuing a particular remedy. For example, an individual who is denied service or accommodation because of their race is not disentitled from pursuing a remedy, perhaps on an expedited basis, merely because there may be other service providers or rental accommodations available. The question, as set out in Weerawardane, is whether the circumstances require that the matter be dealt with in an urgent manner, lest the fair adjudication, or the ability to provide an effective remedy, be frustrated.

13Having said this, I find that the Request to Expedite must be dismissed. The applicant has asserted, without any foundation, that Ryerson will not admit him into the university program with his current marks, or will be less likely to do so if the transcript shows his June 2009 marks along with summer school upgrades. The applicant has not re-applied for admission and been denied. He has not provided any evidence from Ryerson admission officials that support his assertions that, without the requested relief from the Tribunal, he will not be admitted or will be disadvantaged in his efforts to attend Ryerson in the fall.

14In the circumstances, the applicant has failed to demonstrate that expedition expediting is necessary to ensure a fair adjudication, or to prevent the remedy he is seeking from becoming moot.