Uzma Akhtar v. Law Society of Upper Canada, 2010 HRTO 1057

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Uzma Akhtar

Applicant

-and-

Law Society of Upper Canada, Daphne Simon, Diana Miles and Roman Woloszczuk

Respondents

DECISION

Adjudicator: David A. Wright

Date: May 12, 2010

Citation: 2010 HRTO 1057

Indexed as: Akhtar v. Law Society of Upper Canada

APPEARANCES

Uzma Akhtar, Applicant ) On Her Own Behalf

Law Society of Upper Canada, Daphne Simon, ) Brendan van Niejenhuis, Diana Miles and Roman Woloszczuk, Respondents ) Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed on July 30, 2009, alleging discrimination on the basis of race, colour, place of origin, ethnic origin, disability and creed in goods, services and facilities. The applicant is a candidate in the Law Society of Upper Canada’s (“LSUC”) Lawyer Licensing Process. She has not successfully completed the licensing examinations despite nine attempts to do so.

2The applicant alleges that the respondents discriminated against her by failing to accommodate her disabilities to the point of undue hardship by making modifications to the process for writing her exams. She also alleges that the personal respondents made various discriminatory remarks to her on the basis of race, colour, place of origin, ethnic origin, and/or creed. These remarks, she alleges, were made in June of 2008 or earlier.

3This Decision addresses the issue of whether the Application should be dismissed, in whole or in part, pursuant to s. 45.1 of the Code, as requested by the respondents and whether the aspects of the Application relating to the alleged discriminatory comments are within the Tribunal’s jurisdiction because they relate to events more than one year prior to the filing of the Application.

4The respondents requested that that the Application be dismissed on the basis that it has been appropriately dealt with by a decision of the LSUC’s Professional Development and Competence Committee (“Committee”) and the subsequent judicial review of that decision by the Divisional Court (Akhtar v. Law Society of Upper Canada, 2009 CanLII 51512). In an Interim Decision, 2009 HRTO 1814, the Tribunal directed that a hearing would be held to hear oral submissions on the respondents’ request. This hearing was held on February 26, 2010, and during the hearing, the Tribunal also asked the applicant to make submissions on the issue of delay, which she did.

LAW SOCIETY AND DIVISIONAL COURT PROCEEDINGS

5Through its By-Law 3, the LSUC has implemented a program for fulfilling requirements for obtaining a licence to practice law in Ontario as a barrister and solicitor. The licensing process is governed by specific policies, which require the successful completion of licensing examinations.

6The LSUC also established a “Policy and Procedures for Accommodations for Candidates in the Lawyer Licensing Process” (“Policy”). The Policy, to which the Code is attached as an appendix, provides for a procedure to determine accommodation and confirms that “Accommodation will be offered to the point of undue hardship.” Section 4.3 of the Policy, as it stood at the relevant time, provides for an appeal to the Committee if the candidate believes that the accommodation is unsatisfactory. The Policy states that the decision by the Committee on an appeal is final.

7Pursuant to the Policy, the applicant appealed to the Committee. The Committee held an oral hearing on July 21, 2009, at which the applicant had the opportunity to make oral submissions. The transcript of the Committee’s oral decision and reasons records the orders the applicant sought as follows:

The relief which the candidate seeks include, 1), an alternative method of evaluation, other than the current multiple-choice question format; 2), that Ms. Simon, Ms. Miles and Mr. Woloszczuk be precluded in the future from supervising or evaluating the candidate in her future dealings within the licencing [sic] process; 3), that she receive an answer key to questions that she got wrong on earlier exams; 4), that she be deemed to have passed the licencing [sic] exams on the basis of the last marks that she has received; 5), that she be obligated to write only in those areas in which she is deficient; 6), that the fees for the next exams, which she is scheduled to write, be waived; 7) that if she is obliged to write a multiple-choice exam, that she be given more multiple-choice practice questions; 8) that she receive compensation for, and I quote, her “ruined career” from the three “executives”, as she refers to them, who are Ms. Simon, Ms. Miles, and Mr. Woloszczuk; 9), that she be provided with additional time to complete each examination of at least two hours; and 10), that she be provided with, and I quote, “limitless” chances to write the examinations.

8The Committee concluded that “we’re satisfied that the accommodation granted to date under the policy is more than adequate”.

9The applicant sought judicial review of that decision in the Divisional Court. She raised various grounds, including bias and a failure to take into account the applicant’s medical evidence, which were rejected by the Divisional Court. The Application for Judicial Review was dismissed. The Court held, at para. 11:

The Committee reasonably concluded that the accommodations granted by the Registrar were more than adequate to address the applicant’s concerns.

DECISION

10Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

11In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1 that have been applied in many cases since then. Among them are:

• that the purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• that the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application;

• that the Tribunal does not act as an appellate court from the decisions of other tribunals and need not be satisfied that it would have reached the same conclusion as that reached in the other forum, and;

• that the other Tribunal need not be directly applying the Code so long as it is considering human rights principles, which may be applied through a different statutory framework.

12Ms. Akhtar raises various concerns about the Committee and Divisional Court processes that, in essence, suggest that they should not be considered a “proceeding” or “proceedings” within the meaning of s. 45.1. She argues that the Committee was not sufficiently independent of the Law Society, and alleges that the Committee members were meeting with Law Society staff over lunch. She argues that the Divisional Court hearing was limited to the question of whether the Committee proceedings violated procedural fairness and the reasonableness of its decision and was not a full “trial based process”. She states that she never raised the human rights matter before the Divisional Court. She also states that she did not raise the issues of the alleged discriminatory comments by the personal respondents during the Committee process and that the Committee suggested that such issues were outside its jurisdiction. Finally, she makes various other arguments which I have found are not relevant to the issues I must decide, including those regarding the amendments to the Policy, which were not applied to her.

13I find that the Committee and Divisional Court hearings are “proceedings” within the meaning of s. 45.1. The Committee panel was made up of five LSUC benchers and held a formal hearing at which the applicant could present evidence. While the applicant makes various unsubstantiated allegations that the members of the Committee were not, in fact, independent decision-makers, her allegation of bias was rejected by the Divisional Court. I note that it is common in regulatory bodies like the LSUC for there to be an overlap of functions within the same body (see for example, 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), 1996 CanLII 153 (SCC), [1996] 3 S.C.R. 919). It is common practice at the LSUC for bencher committees, independent of its licensing or prosecutorial staff, to make independent quasi-judicial decisions like this one. I therefore find that the proceedings at the Committee were a proceeding within the meaning of s. 45.1. The Divisional Court had the full power to review the decision of the Committee, had the record of the Committee before it and indeed accepted “fresh evidence” on the judicial review (see para. 5). It was not necessary that there be a full “trial” in the Divisional Court in order for it to be part of a “proceeding” within the meaning of s. 45.1.

14In my view, the Committee and Divisional Court proceedings appropriately dealt with the issues about accommodation of the applicant’s disabilities in the licensing exam process raised in this Application. The Policy reiterates the LSUC’s Code obligation that the applicant be accommodated to the point of undue hardship and the Committee found that this had been the case. Having considered the human rights issues raised by the applicant and applied the principles set out in the Policy, the Committee found that the applicant had been accommodated in a manner that was “more than adequate”. The Divisional Court, on review of the full record before the Committee, agreed that this was a reasonable conclusion. Considering the principles set out in Campbell, I find that the Committee and the Court “appropriately dealt with” the matter, and the allegations that the applicant was not accommodated in the exam process are dismissed pursuant to s. 45.1 of the Code. Although the Committee’s decision did not use exactly the same language as included in the Code, it is evident that it and the Divisional Court considered the issue of accommodation to the point of undue hardship, which is specifically set out in the Policy. As set out in Campbell, the Tribunal should not be overly technical about the language used.

15In her Application to the HRTO, the applicant also raises comments allegedly made by the personal respondents on the basis of race, colour, place of origin, ethnic origin, and/or creed. While the applicant did raise these comments in the course of the Committee hearing, it is not clear to me from the reasons that these issues were in fact dealt with by the Committee or the Divisional Court. However, in my view these allegations are outside the jurisdiction of the Tribunal because the Application was filed more than one year after the alleged events and I am not satisfied that the delay was incurred in good faith.

16It was unclear from the Application whether the alleged comments occurred within the one-year limitation period set out in s. 34 of the Code, since the applicant did not make clear when they are alleged to have occurred. During the scheduled hearing, I asked the applicant when these incidents occurred and she said that they all took place more than one year before her Application was filed. I asked her to explain why she argues that any delay was based on good faith. She stated that any delay was incurred in good faith because she attempted to write the exams again after the comments were made, because she raised the issues with benchers of the Law Society, and because she applied to the Equity and Diversity Committee.

17Section 34(1) of the Code reads as follows:

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.

18In my view, the allegations about the comments do not fall within the Tribunal’s jurisdiction. They occurred more than a year before the Application was filed. They do not form part of a “series of incidents” including the accommodations the applicant requested in the licensing exam process, since they involve a different issue and different Code grounds. The reasons the applicant gives, that she was pursuing other avenues to make her concerns felt, do not fall within the type of factors that the Tribunal has required in order to establish good faith. As noted by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paras. 24-25:

The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

In my view, the applicant has not shown good faith for the delay in pursuing her allegations regarding alleged discriminatory comments and they are therefore outside the Tribunal’s jurisdiction.

19Accordingly, the Application is dismissed.