Tohidy v. Mckenzie, 2009 HRTO 2264

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Davoud Tohidy

Applicant

-and-

Robert Mckenzie, Patti McConville and Julie Bruno

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: December 24, 2009

Citation: 2009 HRTO 2264

Indexed as: Tohidy v. Mckenzie

1This is an Application alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant states that he successfully completed a program of studies at Algonquin College during the period August 2008 to April 2009, but alleges that he was treated in a discriminatory manner during the time of his studies by former classmates and instructors. Other aspects of the Application are unrelated to the applicant’s studies, but arise out of his job search and relationship with landlords.

2This Interim Decision deals with disposition of the Application against some respondents, and directs the applicant to provide submissions on certain issues.

3The Tribunal is in receipt of a number of Form 25 documents from the parties. One Form 25 is signed by the applicant, the respondent Esther Schvan and LASI World Skills Inc., and sets out, among other things, the consent of those parties to dismissal of the Application against Esther Schvan and removal of LASI World Skills as a named affected party. Having regard to the material before it, the Tribunal orders the removal of Esther Schvan as a respondent to the Application and LASI World Skills as an affected party, and the style of cause is amended accordingly.

4Further Form 25’s are signed by the applicant and counsel for the respondents Mary Coulas-Boucher and Sandra Burelli and set out, among other things, the consent of those parties to the final disposition of the Application against those respondents. Having regard to the material before it, the Tribunal orders the removal of Mary Coulas-Boucher as a respondent to the Application and the style of cause is amended accordingly. It does not appear that Sandra Burelli was named as a respondent to the Application.

5A further Form 25 is signed by the applicant and the respondent Cynthia Gee and sets out, among other things, the consent of those parties to the final disposition of the Application against that respondent. Having regard to the material before it, the Tribunal orders the removal of Cynthia Gee as a respondent to the Application and the style of cause is amended accordingly.

6A further Form 25 is signed by the applicant and the respondent Barbara Stacey and sets out, among other things, the consent of those parties to the final disposition of the Application against that respondent. Having regard to the material before it, the Tribunal orders the removal of Barbara Stacey as a respondent to the Application and the style of cause is amended accordingly.

7The Tribunal is also in receipt of a Form 25 signed by the applicant and the respondents Algonquin College (the College), Tanya Hawley, Helen Pearce, Steve Griffith, Patrick Denny, Raphael Gera, Susan Ramsay, Jill Wood and Charles Carss. Counsel for those respondents has also sent the Tribunal a copy of Minutes of Settlement and Mutual Full and Final Release.

8The applicant’s signature on the Form 25 is dated October 14, 2009. The applicant sent the Tribunal email correspondence on December 3, 2009 stating, among other things, that he requests that his Application continue against the College and the rest of the respondents. He sent further email correspondence to the Tribunal dated December 7, 2009 in which he states that his signature on the documents sent by counsel for the College respondents “is not valid”. He refers to a “final offer” and states that he will not discontinue the Application against the College and the rest of the respondents unless “all the requirements in my final offer” have been met. He does not dispute that he signed the Form 25 on October 14, nor does he dispute having signed the Minutes of Settlement and Release. He states in his correspondence that he has “changed my decision and decided to continue my file.” Other correspondence from the applicant to counsel for the College respondents dated November 28, 2009 states that “I have decided to make a final offer to make changes in the previously signed documents.”

9Although a copy of the applicant’s “final offer” was sent to the Tribunal, I have not reviewed it because of the possibility that it is privileged. I have, however, reviewed the Minutes of Settlement and Release, as well as the other documents provided by the parties.

10Based on the material before me, I see no reason not to give effect to the Form 25. In it, the applicant confirms that he has resolved his Application, and has agreed to waive his right to make oral submissions to the Tribunal, at least with respect to the respondents named in the Form 25. He consents to a final disposition of the Application as against Algonquin College and other listed respondents. The applicant has also signed Minutes of Settlement in which he agrees to discontinue his Application against those respondents, and a Release of claims against those respondents plus Russell Mills.

11I therefore order the removal of Algonquin College, Tanya Hawley, Helen Pearce, Steve Griffith, Patrick Denny, Raphael Gera, Susan Ramsay, Jill Wood and Charles Carss as respondents to this Application and the style of cause is amended accordingly. The applicant filed a Request for an Order During Proceedings seeking to add Russell Mills as a respondent to the Application. Given the Minutes of Settlement and Release, I deny the Request.

REQUEST FOR RECONSIDERATION

12The applicant has filed a Request for Reconsideration of the Interim Decision in this matter, 2009 HRTO 1230, in which the Tribunal denied his Request to Expedite the Application.

13Under Rule 26 of the Tribunal’s Rules of Procedure, a party may only request reconsideration of a “final decision” of the Tribunal. A decision to deny a Request to Expedite an Application is not a final decision (see Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34).

14The Request for Reconsideration is therefore denied.

REQUEST FOR ORDER TO DIRECT PROVISION OF MAILING ADDRESSES

15There are ten personal respondents remaining in this Application for whom no Form 25’s were filed. Most of these respondents have not been sent Notice of the Application because the applicant did not provide an address for them. He has submitted a Request for an Order During Proceedings asking the Tribunal to direct Algonquin College to release their mailing addresses. It appears that these respondents are either current employees or current or former students of the College.

16The College responded to the Request, and the applicant provided submissions in response to those of the College. The College opposes the Request on the basis that the allegations against the individuals whose addresses are sought are bare assertions that do not contain sufficient particulars from which to respond, and that the vast majority of the allegations do not disclose discrimination to which the Code applies and are outside the jurisdiction of the Tribunal to determine. The College also opposes the Request on the basis that the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA) and the Personal Information and Protection of Electronic Documents Act, S.C. 2000, c.5 (PIPEDA) apply to the information sought.

17The applicant submits that his allegations do raise issues of discrimination under the Code.

18In relation to Lisa Mooney, Tristan Roscoe, Amel Dedic, Jo-Hsin Chen, Matt Gifford, Helena Achia and Natalie Rice, the Tribunal denies the Request for Order. The Tribunal has the power under its Rules, in order to provide for the fair, just and expeditious resolution of any matter before it, to direct a party or other person to produce information, including contact information. However, I see no purpose in taking such action with respect to these individuals, for the following reasons.

19These individuals are former fellow students of the Applicant. Allegations against them include assertions that a student mistakenly sent him an email meant for another classmate, that another student made a comment about the applicant being too old, that classmates altered a camera to be used in an assignment, and that another classmate forwarded an email without his permission.

20The applicant has alleged discrimination in the area of goods, services or facilities as well as in employment. The Tribunal does not have a general power to evaluate relationships between all individuals or to deal with general claims of unfairness. It hears applications that allege violations of the Code. The allegations against the applicant’s classmates do not arise out of an employment relationship. Further, the classmates were not responsible for the provision of goods, services or facilities to the applicant: see Theisen v. Ontario (Attorney General), 2009 HRTO 1781. Although under the Code, harassment by co-workers or co-tenants can give rise to claims against those individuals, there is no specific provision covering claims of harassment against fellow classmates.

21Given the nature of the allegations and the fact that it is unclear whether discrimination in respect of services allows an application against a fellow classmate, I cannot find that these allegations disclose an arguable case of discrimination with respect to services. In the circumstances, I deny the applicant’s Request to seek their contact information from the College, and further direct that these respondents be removed as parties to the Application.

22The remaining individual whose contact information is sought, Robert Mckenzie, was or is an instructor with the College. Allegations against him include assertions that the instructor did not provide as much help to the applicant as he did to other students, that he told him he did not need a certain computer file for an assignment, that he provided computer files for certain assignments in a format that the applicant was unable to access, that he refused to accept certain work from the applicant and told him not to worry because he was going to pass or, on another occasion, that it was not going to be marked. The applicant alleges that, on a specified occasion, this instructor asked the only student who was not a member of a “visible minority” to demonstrate how to do a group assignment. The applicant contends that this instructor’s actions discriminated against him on the ground of race.

23The Tribunal will schedule a telephone conference call to hear the applicant’s and the College’s submissions on the Request for an Order directing the College to provide this respondent’s mailing address. In determining whether it is appropriate to order the College to provide this respondent’s contact information, the Tribunal will consider whether the allegations against this respondent raise issues covered by the Code, or establish a prima facie case of discrimination under the Code. In providing submissions on his Request, therefore, the applicant will be expected to address whether his allegations could, even if true, establish that he has received adverse treatment by this respondent on the ground of his race.

24The parties will also be expected to address the College’s submissions on the effect of the FIPPA and the PIPEDA on the Request.

THE REMAINING RESPONDENTS

25The remaining two respondents, Patti McConville and Julie Bruno, have been sent Notice of the Application and filed Responses.

26Julie Bruno is a former classmate, and the allegations against her arise out of interactions with the applicant as fellow classmates. As stated above, the Tribunal does not have a general power to evaluate relationships between all individuals, or inquire into all claims of unfairness, but deals only with applications that allege violations of the Code. It is not clear that the allegations against this classmate raise issues covered by the Code or establish an arguable claim of discrimination under the Code, but the applicant has not yet been required to respond to this issue. The Tribunal will therefore request the applicant’s submissions on whether there is a basis to proceed with his Application against this respondent.

27Patti McConville is a former landlord. The allegations against her are that between June 2, 2008 and July 15, 2008, the applicant had trouble obtaining voice mail service for his phone, although this problem was then solved. He also alleges that this respondent entered his room without permission on several occasions. He also describes an incident where he and this respondent had a dispute about the use of the refrigerator. The applicant will be asked to provide his submissions on how these allegations raise issues under the Code.

SECTION 34(11) OF THE CODE

28The applicant has filed a claim against all the respondents with the Ontario Superior Court of Justice. The claim is based on the same facts as those set out in the Application, and alleges that the respondents were involved in “conspiracy, abuse and/or Threatening the Plaintiff by committing unlawful activities in order to prevent the Plaintiff from enrolling in the Interactive Multimedia Program at Algonquin College…and to prevent the Plaintiff from Continuing studying and obtaining his certificate for employment.” The fact that the applicant has filed this claim raises an issue about whether the Application is barred under section 34(11) of the Code, which provides:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

29The applicant has not had an opportunity to provide submissions on the applicability of section 34(11). The applicant will be asked during his oral submissions to address whether his Application against the remaining respondents, Robert Mckenzie, Julie Bruno and Patti McConville, is barred under this section of the Code.

CONCLUSION

30In sum, the Tribunal directs as follows:

a. Esther Schvan, Mary Coulas-Boucher, Cynthia Gee, Barbara Stacey, Algonquin College, Tanya Hawley, Helen Pearce, Steve Griffith, Patrick Denny, Raphael Gera, Susan Ramsay, Jill Wood, Charles Carss, Lisa Mooney, Tristan Roscoe, Amel Dedic, Jo-Hsin Chen, Matt Gifford, Helena Achia and Natalie Rice are removed as respondents to the Application.

b. The applicant must provide submissions on whether the Tribunal should direct the College to provide a mailing address for Robert Mckenzie and, in addressing this issue, he must address whether his allegations against Robert Mckenzie raise issues of discrimination covered by the Code or could support a finding of a violation of the Code by this individual.

c. The applicant must provide submissions on how the allegations against Julie Bruno and Patti McConville raise issues of discrimination covered by the Code or could support a finding of a violation of the Code by these individuals.

d. The applicant must also provide submissions on whether his Application against Robert Mckenzie, Julie Bruno and Patti McConville is barred under section 34(11), given the filing of a civil claim.

e. The Tribunal will schedule a telephone conference call to hear the applicant’s submissions on the above issues. Notice of the conference call will be provided to the applicant, the College, Julie Bruno and Patti McConville. These respondents should also be prepared to make submissions on the issues identified above during the conference call.

f. If any party receiving notice of the conference call wishes to rely on additional facts, documents or case law not already part of the Tribunal’s file in this matter, they must provide this material to the Tribunal and to the other parties participating in the conference call by no later than two weeks before the date scheduled for the call.