Pakarian v. Chen, 2009 HRTO 1964

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pooya Pakarian

Applicant

-and-

Robert Chen, Michael Angel and Aimee Nelson

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: November 18, 2009

Citation: 2009 HRTO 1964

Indexed as: Pakarian v. Chen

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated October 16, 2009, alleging discrimination in employment and contracts on a number of grounds including place of origin, citizenship, sex and reprisal. The applicant also filed a Request to Expedite Proceedings (Form 14), pursuant to Rule 21.

2The Application has not been delivered to the respondents. On October 26, 2009, the Tribunal issued a Notice of Intent to Dismiss because the Application appeared to have been filed more than one year after the date of the last incident of alleged discrimination and the Tribunal was not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. The applicant was given 30 days to file written submissions explaining why he believed that the Application is within the Tribunal’s jurisdiction and should be decided by the Tribunal.

3This Interim Decision schedules a conference call for the purpose of deciding whether the Application is barred because of the delay in filing the Application and also, in the event the Tribunal proceeds with the Application, whether to grant the Request to Expedite.

4The applicant alleges discrimination in employment and in goods, services and facilities. His relationship with the respondents was as a postdoctoral research fellow, which he describes as being both paid (employment) and educational (services). He alleges he was treated differentially based on his background and place of origin, as well as sexually harassed, which contributed to a poisoned workplace. He alleges damage in terms of income and professional opportunity as a result of the respondents’ actions, including reprisals against his for having complained about the matters raised in the Application.

5The Application does not provide the date of the last event to which the Application relates. The applicant states in its place that the event is “still ongoing”. On review of the Application, however, it appears the events described all occurred between 2005 and 2007, when the applicant left his employment with the respondents and apparently moved out of Ontario.

6On November 7, 2009, the applicant responded by email to the Notice of Intent to Dismiss. On the issue of the delay, the applicant states that, in early 2008, he filed an internal complaint with the Faculty of Medicine at the University of Toronto containing identical allegations to those contained in the Application. He states that he waited over a year for that investigation to be completed and to receive the conclusions—with which he was ultimately dissatisfied—in March 2009. He also states that he filed a complaint with the College of Physicians and Surgeons of Ontario relating to the subject matter of this Application, but understood that the College had decided not to continue with his complaint after learning that an internal investigation at the University was underway. Additionally, on the issue of delay, the applicant alleges that the damages flowing from the respondents’ alleged actions between 2005 and 2007 continue to this day. He maintains that he never left the matter idle or abandoned his desire to have the issues addressed. He states that he had hoped for a satisfactory outcome from the internal investigation and waited to file this Application out of caution so as not to be perceived to be engaging in an abuse of process.

7Section 34 of the Code reads:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8The Tribunal finds it appropriate to receive the oral submissions from the parties on the issue of whether the Application should be dismissed on the basis of delay. The Registrar will schedule a one-hour hearing by teleconference call. At the hearing the parties may provide their submissions on the application of section 34(1) and (2) of the Code .

9The Registrar will serve the Application on the respondents, as well as a copy of the applicant’s email of November 7, 2009 and this Interim Decision. The respondents are not required to file a Response at this time.

10The parties should also be prepared to make submissions on the applicant’s Request to Expedite. In considering the Request, the Tribunal will balance the demonstrable urgency of the request with any prejudice to the opposing party as well as with institutional resource considerations of the Tribunal. In Weerawardane v. 2152458 Ontario Ltd. (2008), HRTO 53 at para. 9, the Tribunal stated:

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.

11If the applicant or respondent wishes to rely on any supporting material for the purpose of the teleconference (including facts not already provided in the Application, case law or additional submissions), they are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the teleconference. The applicant is requested to file copies of the other complaints he alleges to have filed and, in particular, a copy of the March 2009 decision.

12The Tribunal draws the applicant’s attention to the “Applicant’s Guide” and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre.

The Guide and links to other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar.