Mafinezam v. University of Toronto, 2010 HRTO 1495

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alidad Mafinezam

Applicant

-and-

University of Toronto (Munk Centre)

Respondent

DECISION

Adjudicator: Sherry Liang

Date: July 8, 2010

Citation: 2010 HRTO 1495

Indexed as: Mafinezam v. University of Toronto

1This is an Application filed on February 8, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in goods, services and facilities, on the ground of place of origin and creed. The applicant, who self-identifies as Muslim of Iranian origin, alleges that the respondent, the University of Toronto (Munk Centre), discriminated against him by banning him from the Munk Centre for International Studies. He also alleges that he was threatened or intimidated by the University of Toronto Police.

2The applicant states that the discrimination is ongoing. In his narrative, he explains that the University, through an officer with the University of Toronto Police, informed him in 2004 that he was prohibited from setting foot on the premises of the Munk Centre. He states that over the “past few years, I have tried to contact the Munk Centre to see if the ban still persists, and they have ignored my pleas for clarification.” Included in his materials is email correspondence from 2007 from the Executive Director of the Munk Centre, which the applicant reads as suggesting that the ban still exists.

3The applicant also asserts that certain professors at the University have a “close relationship” with the intelligence community and are part of an extensive “thought police” apparatus and that “it was these types of considerations and a genuine fear of such people that had deterred me from coming forward sooner.”

4In its Response the University requests as a preliminary matter that the Tribunal dismiss the Application on the basis that it was filed past the one-year limitation period outlined in section 34 of the Code. In the Response, the University states that a series of events in 2003 and 2004 led to the issuance of a Trespass Notice to the applicant in July 2004. The University disputes the assertion in the Application that the events are “ongoing”. It is the University’s position that the pivotal date was the date of the Trespass Notice. The fact that the Notice barred the applicant from entry indefinitely does not render the case “ongoing”. The University also states that it has lifted the ban as of February 2009.

5There is a dispute between the parties as to whether the Trespass Notice is still in effect. The applicant submitted a Reply to the Response through correspondence dated May 10, 2010. In his Reply, he disputes that the ban has been lifted, and states that as it is still in effect, the discrimination is ongoing. He agrees that he was permitted to attend an event at the Munk Centre in March 2009. However, he states that he was advised that “the ban can be imposed again at anytime” and he understands this to mean that but for the one event, he is still banned from the Centre. I see no reason to doubt the University’s statement that the ban has been lifted, as it is a matter within its control, but nothing turns on this. The applicant states that he has brought his case to the Tribunal because his “attempt for many years to get them to cease their discrimination has fallen on U of T’s deaf ears.”

6In addition to its Response, the University filed a Request for an Order During Proceedings dated May 20, 2010, in which it repeats its request for early dismissal of the Application. In its submissions, the University relies on the decision in Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993, 236 O.A.C. 115 (ON S.C.D.C.) which discussed the concept of a “continuing contravention” and adopted the following statement by the Manitoba Court of Appeal:

To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences. (Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, quoted in Visic at para. 45)

7The University submits that in this Application, there is only one event alleged to constitute discrimination, the issuance of the Trespass Notice. The applicant’s contention that the alleged discrimination is ongoing relates to the continuing effects or consequences of the Notice, not to a succession of separate acts of discrimination or contraventions of the Code.

8By Case Assessment Direction dated May 25, 2010, the Tribunal indicated that it would address the issue of delay as a preliminary matter and gave the parties a further opportunity to file written submissions. Both filed additional submissions. In the applicant’s submissions, he states that over the past six years, in numerous pieces of email and face-to-face meetings at various non-U of T functions, he has asked various persons associated with the Munk Centre to clarify why he was banned. He states that they repeatedly disregarded his pleas and pled ignorance of his case. He states that for all these years he was afraid to take on a large institution such as U of T, “partially for being naïve, and also because of the intimidating nature of the government connections of some of the faculty, which I outlined in my first memo to the Tribunal to this past February.” The correspondence to which he refers alleges that some of the faculty at the Munk Centre and elsewhere at the University have connections to CSIS, the RCMP and the “intelligence community”.

DECISION

9Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

10Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

11As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

12In 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

13The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” to which the Application relates. In this case, I find that the “incident” to which the Application relates is the issuance of the Trespass Notice against the applicant in July 2004. This is the action which is alleged to be discriminatory. Insofar as the applicant submits that there is “ongoing” discrimination, I agree with the decision in Visic, above, to the effect that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination. In Visic, the Divisional Court upheld a decision of the Ontario Human Rights Commission (the Commission) which declined to deal with a complaint on the basis that it had been filed beyond the six-month time limit then in the Code (the Code was subsequently amended to provide for the current one-year time limit). The Commission did not accept the complainant’s argument that a university’s repeated reliance on a transcript claimed to be discriminatory extended the limitation period in the Code.

14The facts of this Application are similar to those in Visic and I find the rationale in that decision persuasive. In my view, the continuing effect of the Trespass Notice does not constitute further incidents of discrimination or a series of incidents within the meaning of section 34(1). The continuing effect does not extend the time limit for filing an application under the Code so long as the Notice remains in place. If it did, then there would effectively be no time limit on filing an application until and unless the University reverses its ban. This cannot be a result intended by section 34(1).

15I therefore accept the University’s submission that the pivotal event giving rise to this Application was the Trespass Notice of July 2004. The applicant could have made a human rights complaint to the Commission in 2004, on the imposition of the ban. If he believed that the Trespass Notice and the actions of the University of Toronto Police in 2004 were discriminatory, it was incumbent on the applicant to act with diligence and bring his claim of discrimination to the Commission, which was the body charged with receiving such complaints at that time.

16The applicant asserts that he has been attempting since 2004 to obtain an explanation for the issuance of the Notice, and to persuade the University to withdraw the Notice. Although he refers to such attempts over many years, the material details only two specific interactions. The first is the 2007 email exchange in which the applicant states that he “looks forward to registering to attend events at the Munk Centre” and the response from the Executive Director that he is not permitted to attend events or come on the property of the Centre. The second is the conversation in 2009 in which the applicant was told that despite being permitted to attend an event in March 2009, the ban could be imposed again at any time. The applicant also states that at events outside of the University, he approached personnel from the Centre to ask why he was banned.

17The applicant cites these communications as demonstrating the University’s inability to provide a good reason for the imposition of the ban, its refusal to revisit its decision, and as support for his contention that the ban is still in effect. Even accepting the applicant’s general assertions that he tried for many years to have the ban lifted, these interactions constitute, at most, attempts by the applicant to remedy or reverse the action taken against him in 2004, and the response of the University to those efforts. These interactions cannot be viewed as constituting independent acts of discrimination, or part of a “series of incidents” within the meaning of section 34(1). The Tribunal has stated that efforts to pursue one’s rights without filing an Application do not, without more, justify a waiver of the one-year limitation period under section 34(2): Gagne v. Maximum Mining, 2010 HRTO 689.

18In sum, I find on the facts of this case that the alleged discriminatory incident occurred in 2004. It is therefore necessary to consider whether the delay between July 2004 and February 2010, when the Application was filed, was “incurred in good faith” within the meaning of section 34.

19On the material before me, I find that the applicant has not established that the delay in filing the Application was incurred in good faith within the meaning of that section. This is not to say that the applicant has acted in “bad faith”, but that he has not provided a reasonable explanation for the delay: see Corrigan, above. The applicant’s unsupported and generalized assertions of a “thought police apparatus” are not a reasonable explanation for why he did not file this Application earlier, particularly when by his own account he has not hesitated to confront the University’s officials with his complaints over the years.

20In view of my conclusions, it is not necessary to address the University’s arguments about substantial prejudice.

21The Application is accordingly dismissed.