Belamine v. Laurentian University of Sudbury, 2010 HRTO 1407

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mourad Belamine Applicant

-and-

Laurentian University of Sudbury, Jean Seguin, Michel Demore and Serge Demers Respondents

DECISION

Adjudicator: Alison Renton Date: June 23, 2010 Citation: 2010 HRTO 1407 Indexed as: Belamine v. Laurentian University of Sudbury

APPEARANCES

Mourad Belamine, applicant ) On His Own Behalf

Laurentian University of Sudbury, Jean Seguin, Michel Demore, and Serge Demers, Respondents ) Jack Braithwaite, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on May 26, 2009 alleging discrimination on the basis of race, place of origin, citizenship and ethnic origin. Specifically, the applicant alleges that he was discriminated against by the respondents when he did not pass the requirements of the French Bachelor of Education online degree program with the corporate respondent. He alleges that he did not know that he did not successfully complete the requirements of some of the courses until January 2008. He also alleges that the corporate respondent did not tell him quickly enough about his appeal options, which was discriminatory.

2A hearing in this matter was heard on June 4, 2010 in Sudbury. Prior to the hearing, a Case Assessment Direction (“CAD”) was issued in which the Tribunal stated that it appeared from the allegations that the courses the applicant took were in 2005 and 2006 although the applicant may not have known until later that he did not compete or pass those courses. The Tribunal directed the parties to be prepared to address at the hearing, amongst other things, whether the Application was timely and, if there was a delay in filing the Application, the applicant should be prepared to address how the delay was incurred in good faith. In the CAD the Tribunal noted that neither party had filed its documentation with the Tribunal (as required by Rule 16) and directed the parties to do so immediately. Neither party complied with their Rule 16 and Rule 17 requirements prior to the hearing.

3At the hearing, the applicant presented his case, which consisted of his testimony and various documents that were entered as exhibits without objection from the respondents. Upon the conclusion of the applicant’s case, the respondents did not cross-examine the applicant, present any witnesses for evidence, or submit any documents as exhibits. The respondents submitted that the Application should be dismissed because it was filed outside the one year limitation period set out in section 34(1) of the Code and because the applicant failed to make out a prima facie case of discrimination. The applicant responded to these submissions by reiterating that he had been discriminated against by the respondents and that he tried to address the issue of not passing the courses within the corporate respondent, including filing an appeal, before filing an Application with the Tribunal.

4Subsequent to the hearing, by letter dated June 11, 2010 and received by the Tribunal on June 14, the respondents’ counsel sent the Tribunal a “Book of Documents” that he submitted the respondents intended to rely upon in support of their submissions that the Application was untimely and failed to disclose a prima facie case of discrimination. The respondents’ counsel provided no explanation as to why these documents were not provided to the Tribunal at the June 4, 2010 hearing.

5The book of documents consisted of 18 tabs of documents, a number of which in French, including documents that appear to be electronic communications with the applicant. The documents are, in my opinion, evidence. If the respondents wanted to rely upon these documents as part of their case, they should have been entered at the hearing as exhibits either through the cross-examination of the applicant or through testimony of the respondents’ witness(es). Since the respondents decided not to cross-examine the applicant or call any witnesses, the documents in the Book of Documents are not admitted in this proceeding and I have not considered the substance of them in issuing this Decision.

EVIDENCE

6The applicant’s evidence was not focussed and did not address the allegations of discrimination on the basis of race, place of origin, citizenship and ethnic origin. The applicant filed his Application and Reply in English and did not ask to have the proceeding conducted in French, although it is clear from the Tribunal’s materials that services are available in both French and English. The applicant was responsive to questions from me during the hearing and I am satisfied he was able to understand the proceedings and able to communicate his positions on the issue in dispute to me.

7The applicant testified that he participated in the online French Bachelor of Education degree program with the corporate respondent. Amongst the courses that he took, between 2005 and 2006, was “Pensée Mathématique” and “Système scolaire de l’Ontario” (“the 2 courses”). In preparation for graduating, he requested a copy of his transcripts and was told, at least by January 2008, that he had not paid his outstanding tuition fees. In late January 2008 he sent an email to the corporate respondent directing it to charge his credit card for the outstanding tuition fees. He learned at that point, if he had not known before, that he had not passed or completed or registered for the 2 courses and was told that he would have to complete the requirements of the 2 courses in order to graduate.

8He alleges that the personal respondent Jean Seguin discriminated against him by telling the applicant that he had not received all the completed requirements for “Système scolaire de l’Ontario”. The applicant entered as an exhibit a copy, in French, of the examen, dated 24, mars 2006, that M. Seguin had provided the class and submitted that M. Seguin should have marked him on the work that he had completed which could then be added to his final mark. The applicant acknowledged that the examen was from 2006 and submitted that he was told in 2008 that he did not pass this course.

9He alleges that the personal respondent Serge Demers discriminated against him when he did not pass or meet the requirements of “Pensée Mathématique” in 2006. He submitted that in February 2008 M. Demers told him that he could do the course again and then changed his mind.

10He also alleged that he was discriminated against during his training in 2006 when a teacher-supervisor asked him to get her a bottle of water. He refused and she complained to the corporate respondent. The applicant alleged that the personal respondent, Michel Demore, asked him to apologize for his behaviour, which, the applicant submitted, was unfair and discriminatory. The applicant refused to apologize and was told that he would fail the training. He testified that other students, who were not named, who were born in Canada and did not complete the training were able to graduate.

11The applicant alleges that the difficulties he experienced from the respondents arising from the 2 courses and the training amounts to discrimination on the basis of race, place of origin, citizenship, and ethnic origin. He self-identifies as being originally from Algeria and submitted that the respondents knew from his file his name, his citizenship, and where he had obtained other degrees (Algeria and Germany). He had not experienced problems at other universities like he did with the respondents. He alleged that other students did not write well in French and yet they graduated from the program and are now in teaching students in French. As part of his evidence, he submitted an email written in French by a former student containing, he alleged, a number of mistakes. He submitted that the difference between the other students and himself is because the others were born in Canada, and he was not, and the other students do not have a “name as strange as Mourad”. Because of the mistakes the applicant alleges the corporate respondent made, the applicant did not believe it was fair that he have to pay for further courses with the corporate respondent. Eventually he took additional courses from another university from which he graduated.

12The applicant testified that he did not want to file an Application with the Tribunal. Instead, he raised his concerns with the corporate respondent through various internal avenues. He spoke with the professors who taught the 2 courses and the faculty registrar and he filed an appeal. He testified that he had frequently provided his email and home addresses to various representatives of the corporate respondent, yet each time he contacted a representative s/he did not have his contact information. He alleged that representatives of the corporate respondent were slow in communicating with him about his appeal options and this was discriminatory. His appeal was dismissed by the corporate respondent as being untimely. Eventually, he filed his Application with the Tribunal in May 2009.

Delay in Filing the Application

13Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or the last in a series of incidents) to which the application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the application relates unless the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no one would be substantially prejudiced by the delay:

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 subsection 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.

14The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith.

15In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

16Efforts to pursue one’s rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508; Miller, supra.

17The 2 courses and the training, which are the subject matter of this Application, took place between 2005 and 2006. The applicant claims that he was not aware that he had not met the requirements of these courses until January 2008. His Application was filed in May 2009 which is approximately 16 months after he claims he first learned that he did not meet the course’s requirements and almost 5 years after the courses were taken. The applicant’s attempts to address his concerns about these courses, starting in January 2008, first with the professors, then the faculty and then by filing an appeal, do not constitute a reasonable explanation, as required under section 34(2), as to why he did not pursue his rights under the Code in a timely manner.

18Accordingly, except for the appeal allegations which are addressed below, the Application is dismissed against all the respondents due to delay.

No Prima Facie Case

19The applicant also alleges that the corporate respondent discriminated against him with respect to the appeal options that were available to him. He claims that because of the discrimination, he did not file his appeal soon enough and it was ultimately dismissed as being untimely. In his view, representatives of the corporate respondent “took too much time” in telling him about his appeal options which would not have been the case if he had been born in Canada, had a different sounding name or a different race.

20The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which, if it is believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.) at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that is actions were not discriminatory. It is well established that the threshold for a establishing a prima facie case of discrimination is not high. See Hobart v. Renfrew County Housing, 2010 HRTO 1154; Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 1229.

21While I appreciate the applicant’s position that he contacted the corporate respondent about his appeal options and that it took a long time for him to get a response, the applicant’s allegations, which are very brief on this issue, do not establish a breach of the Code on the basis of race, place of origin, citizenship, or ethnic origin. There is nothing in the applicant’s evidence, beyond his unsupported, bald claim, to support a connection between the assertion of the Code grounds to any differential treatment that he received, even if the corporate respondent took a long time to respond to him. Therefore, I am not satisfied, after hearing the applicant’s submissions, that he has established a prima facie case of discrimination about the appeal allegations and the Application is dismissed on that basis.

22Accordingly, the Application is dismissed in its entirety.