Mark Chan v. Registration Committee of the Association of Professional Engineers of Ontario and Virendra Sahni, 2010 HRTO 2265

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Chan

Applicant

-and-

Registration Committee of the Association of Professional Engineers of Ontario and Virendra Sahni

Respondents

DECISION

Adjudicator: Mary Truemner

Date: November 15, 2010

Citation: 2010 HRTO 2265

Indexed as: Chan v. Association of Professional Engineers of Ontario

APPEARANCES

Mark Chan, Applicant ) Self-represented

Registration Committee of the Association of Professional Engineers of Ontario and Virendra Sahni ) Sean McFarling, Counsel

1This is an Application filed on May 5, 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 describes the applicant’s efforts to obtain a license to engage in the practice of professional engineering, and the respondents’ refusal to grant that licence for the reasons contained in their written decision issued July 15, 2009.

2The respondents requested a Summary Hearing which was granted by the Tribunal in a Case Assessment Direction (CAD) dated September 16, 2010. Rule 19A.1 of the Tribunal’s Rules of Procedure states the following:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3The CAD advised the applicant to be prepared to explain how, if true, his allegations constitute discrimination on the basis of ethnic origin, marital status or age within the meaning of the Code, and how there is a reasonable prospect that he can prove his allegations on a balance of probabilities. The Tribunal also directed him to be prepared to address preliminary issues raised by the respondents, including the issue of whether the Tribunal has jurisdiction to inquire into the conduct and decisions of the respondents.

4The Summary Hearing was held on October 26, 2010, by teleconference, and the respondents advised the Tribunal that the organizational respondent was not named correctly. The style of cause has been amended accordingly.

5The respondents argued that the Application is outside the Tribunal's jurisdiction because it is an adjudicative decision. It is clear from the Tribunal's decision in Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892 that in at least some circumstances, aspects of a professional college's registration decision are within the Tribunal's jurisdiction. Even assuming that all the applicant's allegations are within the Tribunal's jurisdiction, for the reasons that follow they have no reasonable prospect of success. Accordingly, there is no need to decide in this case the significant and complex legal issues raised by the respondents’ arguments.

DO THE APPLICANT’S ALLEGATIONS CONSTITUTE DISCRIMINATION WITHIN THE MEANING OF THE CODE AND DOES THE APPLICATION HAVE A REASONABLE PROSPECT OF SUCCESS?

6The issues before me involve a legal analysis about whether the allegations, if true, might reasonably be considered to amount to a violation of the Code, and whether there is a reasonable prospect that the applicant can prove the violation by linking the events he describes with the alleged grounds of discrimination, on a balance of probabilities, using evidence he has or evidence that is reasonably available to him.

7As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Allegations of Discrimination because of Age

8The applicant states in his Application that he was refused his professional engineering licence (his “P.Eng.”) because “they felt I am too old to get license for P.Eng.” At the Summary Hearing, he explained that he was 63 years old and that the Registration Committee and the personal respondent would have known his age by looking at his face during the hearing before them. He stated that the reason he believes they discriminated against him on the basis of his age is because they would not allow his work experience from a long time ago to qualify as experience necessary for obtaining his licence. 48 months of experience, as prescribed by Regulation 941 under the Professional Engineers Act, R.S.O. 1990, c. P.28, is a requirement for a P.Eng. He had no other evidence of or reason for his allegation of age discrimination. He had no evidence that people in his age group are unlikely to have recent experience when applying for a P.Eng.

9Without any evidence that his age is the reason for not having recent experience which the respondents would accept as meeting their experience requirements, I cannot find that there is any reasonable prospect of success for the allegation of age discrimination. The Application is therefore dismissed with respect to allegations of discrimination because of age.

Allegations of Discrimination because of Marital Status

10The applicant is single and states in his Application that the respondents discriminated against him on that basis because “I believe from their feeling and their abusing power.”

11At the Summary Hearing, the applicant stated that the respondents knew that he was single by the way he talked when he appeared before them because he is “less mature” and because “people with family and children can express themselves more maturely.” He says that the personal respondent asked him, “How can we give you a licence if you can’t communicate?” The applicant’s position is that he would have been able to communicate better if he were married and therefore more mature. I asked him if he had any evidence that he could communicate better if he were married or that married people communicated better than single people, and he replied that he did not. He said that it was simply his point of view that married people are more mature and communicate better than single people.

12Without any further link between the fact the applicant is single and the respondents’ concern that the applicant lacked communication skills, I find that there is no reasonable prospect that the allegation of discrimination because of marital status will succeed. The allegations of discrimination based on marital status are therefore dismissed.

Allegations of Discrimination because of Ethnic Origin

13The applicant alleges that the respondents refused his licence because he is Chinese. He admits that people who are Chinese have received licences from the respondents, and there was a Chinese panellist on the 3-person panel of his Review Committee. The applicant claims, however, that the personal respondent, another panellist of the Review Committee, was hostile towards him because he was Chinese and that he urged the other two panellists to join him in denying the applicant’s application for a P.Eng. licence.

14With respect to his reasons for alleging that the personal respondent was hostile towards him because he is Chinese, the applicant said that he has an accent but that he speaks English well. He said that on the first day of the hearing before the Review Committee, the personal respondent told him that he didn’t understand what the applicant was talking about, looked at him with disgust on a break, and then, in the written decision issued after the hearing, denied granting an exemption to the experience requirements for the P.Eng licence, stating that the applicant did not have “sufficient practical knowledge and communication skills to engage in the practice of professional engineering with competence.”

15The applicant also explained that after the first day of his hearing, counsel for the Registrar of the Professional Engineers of Ontario suggested to him that he use an interpreter. He explained that he did not want to be impolite to the Registrar’s counsel, so he did not object. On the second day of the hearing before the respondents, the applicant used an interpreter supplied by the Registrar. He argued that the suggestion to use an interpreter might constitute discrimination because of ethnic origin.

16The respondents’ counsel confirmed that he was not acting for the Registrar. The Registrar was a party before the Registration Committee at the applicants’ licensing hearing. The Registration Committee was a neutral body hearing evidence and argument from the applicant and the opposing party which was the Registrar. Counsel for the respondents argued that his clients, in their neutral role, would therefore not have had a private discussion with the Registrar’s counsel with respect to any matter, including the provision of an interpreter. The respondents’ counsel argued that there was no evidence that the respondents played any role in the suggestion of an interpreter, and given that the Registrar was not named as a respondent, the Application should be dismissed with respect to that allegation involving the interpreter.

17The respondents’ counsel also argued that the respondents’ reference to “communication skills” in their decision should be interpreted in the context of the applicant’s disorganized documents and presentation in the proceedings before them. He argued that the respondents’ reference to “communication skills” in their decision cannot be understood to refer to the applicant’s accent. In fact, the respondents’ decision describes the reason for adjourning the hearing on the first day as follows:

The hearing was adjourned on December 17, 2008 to allow Mr. Chan to get legal representation and to organize his papers to ensure consistent submissions to the panel. He was extremely disorganized in his presentation on that day.

18In light of the respondents’ reference to the applicant’s disorganization, and not to his accent, as an explanation for not understanding the applicant, and without any further link between the respondents’ reference to communication skills and the applicant’s ethnic origin, I find that there is no reasonable prospect that the allegation of discrimination because of ethnic origin will succeed. Without deciding whether or not a suggestion of an interpreter to a participant in an adversarial process might amount to discrimination because of ethnic origin, I also find that there is no reasonable prospect that the suggestion of an interpreter may be linked to the respondents. Further, I find that there is no reasonable prospect that the applicant can establish discrimination because of ethnic origin on the basis of his feeling about a look given to him by the personal respondent during a break in the hearing. The Application is thus dismissed with respect to the applicant’s allegation of discrimination because of ethnic origin.

DECISION

19As stated above, there is no need for me to make a decision on whether the Tribunal has jurisdiction over decisions of the respondents given that I have found that there is no reasonable prospect that the Application or part of the Application will succeed. This Application is dismissed.