HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Farideh Ghafourian Ahmad Zadeh Tabrizi
Applicant
-and-
The Governing Council of the University of Toronto
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Ghafourian v. University of Toronto
WRITTEN SUBMISSIONS BY
Farideh Ghafourian, Applicant ) Self-represented )
The Governing Council of the University ) Sari Springer, Counsel
of Toronto, Respondent )
ii
INTRODUCTION
1The purpose of this Decision is to decide whether the Application should be dismissed because it was not filed with the Tribunal within the one-year statutory deadline.
BACKGROUND
2The applicant self identifies as a non-white Muslim woman from Iran.
3In 2005, she applied for admission to two Master of Arts (“M.A.”) programs and a Master of Education (“M.Ed.”) program at the University of Toronto. She was denied admission to both M.A. programs, but was accepted into the M.Ed. program. She started the M.Ed. program in the same year.
4In 2006, she began the process of appealing her grades in two courses in the M.Ed. program. She graduated from the M.Ed. program in 2007, but the appeals are ongoing.
5In 2007 and 2008, she submitted letters and documents to the respondent in support of her appeal, which alleged that she had been discriminated against. For example:
In a letter dated May 25, 2007, she alleged that an individual who reviewed her papers for one of the courses made discriminatory comments regarding her sentence structure.
In the same letter, she alleged that the instructor in the other course used a discriminatory marking system when he graded her assignments.
In a letter dated August 6, 2007, she stated: “It appears that I need to go through the appeal and possibly other avenues for [the instructor’s] discriminatory comments/actions to resolve this.”
In a letter dated February 26, 2008, she stated that she did not find it appropriate for the instructor in one of the courses to ask her if she was Armenian because her last name ends with “ian”.
6On February 15, 2008, the applicant filed a discrimination complaint with the Ontario Human Rights Commission against the Toronto Police Services Board: Ghafourian v. Toronto Police Services Board, 2010 HRTO 1620.
7In the last quarter of 2008, the applicant filed two freedom of information (“FOI”) requests with the respondent, and received a significant number of documents in December 2008 and July 2009.
8On September 28, 2009, she filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), which alleged that the respondent discriminated against her with respect to education services because of her place of origin, citizenship and ethnic origin.
9Specifically, she alleged the following:
(1) In 2005, the respondent accepted her into one of the M.A. programs, but then denied her admission, and gave her spot to another student.
(2) She later noticed that one of the students in her M.Ed. program was promoted to the M.A. program in the middle of year.
(3) At the end of 2005, the respondent investigated her for unknown reasons. She was also asked by two professors about her age, religion, ideology, and nationality.
(4) In 2006, the respondent lowered her grades in two courses.
10In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote that she found out about the discrimination on July 20, 2009. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), she wrote:
I was not aware that my spot for the M.A. Program was given to another applicant based on a note in an off-campus meeting. The fact that I was discussed in an off campus meeting by a group of individuals who excluded me based on a note provided by a feminist scholar indicates an abstruction [sic] of justice and conflict of interest.
11The respondent filed a Response on December 18, 2009, which denied the allegation of discrimination. The Response also requested that the Tribunal dismiss the Application on a preliminary basis because it was filed well beyond the one-year limitation period outlined in section 34 of the Code.
12Specifically, the respondent stated that there is no good faith reason for the delay in filing the Application, and that the respondent is substantially prejudiced because almost five years have passed, which makes it extremely difficult for it to properly and thoroughly defend its position.
13The applicant filed a Reply on January 20, 2010, which stated that her delay in filing her Application was incurred in good faith because she had no knowledge that the respondent denied her admission to a M.A. program and investigated her for discriminatory reasons until July 20, 2009, when she discovered that she was ranked in the high group for admission to the M.A. program. The Reply also stated that a feminist scholar’s note referred to in a March 2005 email is “proof of… discrimination against me,” and that she experienced “harassment, discrimination, and humiliation” on a “daily basis” from 2005 onwards.
14In an Interim Decision, 2010 HRTO 675, the Tribunal decided that there would be a half-day hearing to hear oral evidence and submissions from the parties with respect to the preliminary issue of timeliness. The hearing took place on October 27, 2010.
15At the outset of the hearing, the applicant requested that the Tribunal amend its records to reflect her full name. I granted the applicant’s request, and the style of cause is amended accordingly.
16I then heard oral submissions from the parties and dismissed the Application with written reasons to follow. The following are my reasons for the dismissal.
ONE-YEAR STATUTORY DEADLINE
17The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:
- (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.
SUBMISSIONS
18There was no dispute between the parties that the alleged incidents of discrimination occurred in 2005 and 2006, and that the Application, which was filed in September 2009, was therefore out of time. Accordingly, the parties’ oral submissions mainly focused on whether the applicant’s delay in filing her Application was incurred in good faith.
19The applicant submitted that her delay in filing her Application was incurred in good faith because she only found out about the discrimination in July 2009 when she received documents from the respondent through FOI requests. Specifically, she stated that in December 2008 she obtained a 2005 email that showed she was accepted for one of the M.A. programs, but her spot was given to another student based on an off campus meeting and a note produced by a feminist scholar. She stated that in July 2009 she obtained a further 2005 email that showed that she was ranked in the high group for admission to that M.A. program.
20However, in her submissions, the applicant also admitted that from 2005 onwards she “witnessed” discrimination against her. Specifically, she stated that when she was questioned by her professors about her age, religion, ideology, and nationality, she felt that she was being discriminated against. She also stated that she first became suspicious that her denial to the M.A. program was discriminatory when the respondent lowered her grades in two courses in 2006. She also stated that the police broke into her home in 2006 because she is Muslim and Iranian, and that the respondent’s decision to deny her admission to the abovementioned M.A. program was related to the investigation of her. She further stated that she filed FOI requests because she wanted to get documents to “prove” the discrimination against her.
21The respondent‘s counsel submitted that the applicant failed to meet her onus of providing a reasonable explanation for the delay in filing her Application. She stated that the applicant believed from 2005 onwards that the respondent was discriminating against her, and that finding evidence through FOI requests several years later to bolster her case does not justify the delay.
ANALYSIS AND DECISION
Good Faith
22In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:
In my view, where an applicant seeks 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 Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). 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). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
23In Klein, supra, the Tribunal also made the following comments with respect to the doctrine of “discoverability” at para. 23:
What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.
24I am not satisfied that the applicant’s delay in filing her Application with the Tribunal was incurred in good faith. Her explanation for the delay shows a clear lack of due diligence. The applicant is a sophisticated individual, who is well aware of her options for pursuing her rights. Between 2005 and 2008, she obtained a graduate degree, appealed her grades in two courses, indicated in her appeal that she may pursue other avenues to resolve discriminatory comments/actions by an instructor, filed a discrimination complaint against another organization, and filed two FOI requests. Despite her sophistication, her awareness of her rights, and her belief in 2005 and 2006 that the respondent was discriminating against her, she did not file her Application with the Tribunal until 2009.
25Furthermore, the applicant’s explanation for the delay does not fall within the doctrine of discoverability. The applicant admitted that the documents that she received in December 2008 and July 2009 were not information that made her aware of a potential case under the Code, but rather evidence that would help prove her allegations. In essence, the applicant delayed filing her Application in order to gather evidence that confirmed her suspicions of discrimination and buttressed her case.
26In view of my finding that the applicant’s delay in filing her Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.
ORDER
27The Application is dismissed.
Dated at Toronto, this 24th day of November, 2010.
“Signed by”
Ken Bhattacharjee
Vice-chair