HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zohreh Soheil-Fakhaei
Applicant
-and-
Canadian Business College – Faculty of Dental Hygiene,
Paul Sharma, Helen Wolda, Sangeeta Patodia
and Pooja Sarda
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Soheil-Fakhaei v. Canadian Business College
[1] This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 26, 2007.
[2] The applicant generally alleges that she experienced discrimination because of her colour, creed, ethnic origin, race and sex in respect of the provision of services contrary to s. 1 and 9 of the Code and sexual harassment and sexual solicitation contrary to s. 7(2), 7(3) and 9 of the Code, arising out of her attendance in the dental hygiene program at the respondent College.
[3] The purpose of this Interim Decision is to address the following issues: (1) a request for dismissal of the Application pursuant to s. 45.1 of the Code or as an abuse of process due to a decision of the Ministry of Training, Colleges and Universities (“MTCU”); (2) a request for removal by personal respondents Pooja Sarda and Helen Wolda; (3) requests for disclosure of documents and particulars. I also will address case management matters in preparation for the hearing on January 28, 2011.
NATURE OF APPLICATION
[4] This is an Application filed under the transitional provisions of the Code, which means that the Application must be based on the subject-matter of the complaint as filed with the Commission. In this case, the applicant filed voluminous materials together with her Application, some of which may represent appropriate disclosure of documents and additional facts in support of her allegations. At the end of the day, however, the allegations at issue in this proceeding must be based upon the content of the complaint as filed.
[5] I have spent a considerable amount of time reviewing and endeavouring to understand the applicant’s materials and the allegations made that there has been a violation of the Code. On the basis of this review, the applicant’s allegations of a violation of the Code appear to be as follows:
a) that she experienced sexual harassment and sexual solicitation by the personal respondent Paul Sharma in relation to private meetings that she had with Mr. Sharma;
b) that she experienced discrimination in relation to various events that occurred or incident reports that were issued regarding her work at a dental clinic on the following dates: August 11, 2006 (involving Ms. Wolda and Dr. Patodia), September 28, 2006 (involving Dr. Patodia, Ms. Sarda and Ms. Wolda), October 5, 2006 (involving Ms. Sarda), November 2, 2006 (involving Dr. Patodia), November 7, 2006 (involving a secretary at the clinic) and November 9, 2006 (involving Ms. Sarda);
c) that she experienced discrimination by Mr. Sharma arising out of a letter dated November 2, 2006 identifying her as a high risk student;
d) that she experienced discrimination by Mr. Sharma when she was suspended from clinic work on November 9, 2006 as confirmed by letter dated November 13, 2006;
e) that she experienced discrimination in relation to the calculation of her community health mark and consequent failure in the program;
f) that the College and Mr. Sharma failed in their obligation to take appropriate steps to respond to complaints of discrimination made by the applicant during the period from August 2 to November 30, 2006.
REQUEST FOR DISMISSAL
[6] The respondent College has requested that this Application be dismissed pursuant to s. 45.1 of the Code or as an abuse of process as a result of an investigation conducted by MTCU in response to a complaint filed by the applicant against the College. In support of this request, the College has filed the applicant’s complaint and the decision letter issued by MTCU.
[7] There is no doubt that in her complaint to MTCU, the applicant raises many of the same issues as raised in this Application, with the notable exception that there is no allegation of sexual harassment or sexual solicitation raised.
[8] The MTCU’s decision letter is dated May 16, 2007. While the letter states that a thorough review of the applicant’s complaint has been conducted, there is no evidence before me as to the specific nature of the review. It does not appear that any hearing was held where the parties were present and gave evidence. Rather, the review appears to have taken the form of an investigation, whereby a response to the complaint was sought from the College.
[9] In any event, the MTCU’s decision letter clearly states that the author “cannot speak of incidents for which I was not present, nor can I make judgment on arrangements that were made between you and the staff of the Canadian Business College”. Rather, the MTCU states that it can only make decisions about violations of the Private Career Colleges Act, 2005, and finds that there has been no violation of that specific legislation. This review appears to have been limited to a determination that the College has a student complaint procedure and a student expulsion policy that satisfy the regulatory requirements of that Act, and that the applicant had utilized the student complaint procedure regarding her expulsion from the dental hygiene program.
[10] There is no indication in this decision letter that the MTCU considered the applicant’s allegations that her rights under the Code had been violated or even that the MTCU considered the specific factual events upon which those allegations were based. This does not appear to have been within the MTCU’s regulatory authority.
[11] While the MTCU’s decision letter does specifically address the applicant’s final mark in her community health course, its review was limited to noting the fact that the applicant was offered an opportunity to write a supplementary examination but was not successful. There is no determination as to whether the applicant experienced discrimination in relation to how her mark was calculated or in relation to her efforts to have her mark changed.
[12] The MTCU review did not deal with the substance of the Application as it relates to the applicant’s allegations of discrimination, sexual harassment and sexual solicitation in violation of the Code. As a result, there is no basis to warrant dismissal of the Application as a result of the MTCU review, either pursuant to s. 45.1 of the Code or as an abuse of process.
REQUEST FOR REMOVAL OF PERSONAL RESPONDENTS
[13] The personal respondents Pooja Sarda and Helen Wolda have requested that they be removed as parties to this proceeding.
[14] The principles relating to the removal of personal respondents are stated in [Persaud v. Toronto District School Board, 2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31) as follows:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
[15] I have two concerns about the removal of these two personal respondents at this stage of the proceeding. First, while the College is also alleged to be responsible for the same conduct as these two personal respondents, the Tribunal does not have any clear statement from the College that it has agreed to accept deemed or vicarious liability for any actions by these two individuals that may be found to be in violation of the Code.
[16] My second concern relates to the nature of the allegations against these two personal respondents. With respect to Ms. Sarda, the applicant has alleged in her complaint three incidents of reprimands or adverse actions taken against her in relation to her work at the clinic in which Ms. Sarda is alleged to have been involved, namely the incidents on September 28, October 5 and November 9, 2006. As I understand the applicant’s allegations, she alleges that for discriminatory reasons related to her colour, creed, ethnic origin or race, Ms. Sarda together with the other personal respondents and the College put barriers in the way of her successful completion of the dental hygiene program. I appreciate that these allegations are vigourously disputed by Ms. Sarda as well as by all other respondents. However, whether these allegations are founded is a matter that will need to be addressed at the hearing. In my view, at this stage of the proceeding, I do not have a sufficient basis in accordance with the principles established by this Tribunal’s caselaw to justify the removal of Ms. Sarda as a party to this proceeding.
[17] Similarly, with regard to Ms. Wolda, she is alleged to have been involved in the incidents on August 11 and September 28, 2006 as well as having been the subject of complaints made by the applicant and her husband to the College. As with Ms. Sarda, the applicant’s allegations as I understand them, are that for discriminatory reasons related to her colour, creed, ethnic origin or race, Ms. Wolda together with the other personal respondents and the College put barriers in the way of her successful completion of the dental hygiene program. Once again, I appreciate that these allegations are vigourously disputed, but that will need to be addressed at the hearing. At this stage of the proceeding, I do not have a sufficient basis in accordance with the principles established by this Tribunal’s caselaw to justify the removal of Ms. Wolda as a party to this proceeding.
REQUEST FOR PRODUCTION
[18] The applicant has made a request for production of copies of all files for the clients that she attended at the clinic operated by the College, and she has specifically identified the names of eight clients: Muhammad Mehdi; Shaikh Ali; Nasreen Ali; Zulfiqar Ali; Habiba Ali; Allena Ali; Urwa Farooqi; Nancy [no last name]; and Quratulain [no other name provided].
[19] The test for production of documents is whether they are arguably relevant to the matters at issue in the proceeding. In this case, issues clearly have been raised as to the quality of the work being done by the applicant, the relative difficulty of the problems presented by her clients and whether she was capable of handling the work, and whether she refused or failed to properly follow directions given to her by Dr. Patodia and clinic staff. While I appreciate the confidentiality that attaches to medical records, which in my view would extend to dental records, the issues raised in this or any other legal proceeding relating to the care provided to patients at times may require the disclosure of otherwise confidential records. In my view, given the issues raised in this proceeding, this is one of those cases.
[20] Accordingly, I order the respondent College to disclose to the applicant and the other parties and file with the Tribunal a copy of the clinic files relating to these eight patients with the names redacted (blacked out) so that only the initials are shown and with all other personal information (such as address etc.) also redacted, so that the records only reflect the clinical notes and records relating to their care. With regard to clients Nancy [no last name] and Quratulain [no other name provided], the College shall use its best efforts to identify these individuals on the basis that they received care at the clinic during the period when the applicant was working there as a student. If the applicant has any further information to provide to assist in the proper identification of these individuals, she shall provide such information to the College forthwith.
[21] I appreciate the statement by the respondent College that the clinic is separate from the College. However, my understanding is that the clinic is operated under the auspices of the College and as part of its dental hygiene program. On this basis, it is my assumption that the College has the power to obtain and disclose the clinic’s records. If I am incorrect in this assumption, and if an order is required to be made directly to the clinic in order to require disclosure of these records, the College shall advise the Tribunal and the other parties within 7 calendar days of the date of this Decision, and shall provide the specific name, address and contact person at the clinic who should receive this Tribunal’s order for production.
[22] The applicant also has requested details of a committee meeting with the dentist and dental hygienist staff in which it was recommended that the applicant not continue in the program, as referenced at page two of a letter dated February 22, 2007 from the Principal of the College to the applicant’s then legal counsel, Granville Cadogan. If the College or any of the personal respondents have any minutes, notes or other records relating to this meeting, such documents also shall be disclosed to the applicant and the other parties and filed with the Tribunal.
[23] In addition, pursuant to the Tribunal’s Rules, this Tribunal also has the power to require a party to produce information. The applicant has requested that the College provide details of the meeting, including the date of the meeting and who attended. Once again, this information is arguably relevant to the issues raised in this proceeding, which include the reasons for the College’s decision to remove the applicant from the dental hygienist program. Accordingly, I order the respondent College to provide details of the committee meeting at which it was recommended that the applicant not continue in the program, including the date of the meeting, who attended, and what was discussed in relation to the applicant’s participation in the program and the reasons for the recommendation that she not continue.
[24] The applicant also references certain internal memos that were appended to the Response to the Application by the College dated June 7, 2010 and filed with the Tribunal on June 11, 2010. I have reviewed this Response, and note that several internal memos critical of the applicant’s quality of work were appended to the Response, which I presume were served on the applicant. What the applicant requests is “the copy of the whole internal memo so I can show the appreciative remarks from neutral instructors”. My understanding of this request is that, if the College is in possession of other internal memos relating to the applicant, which may commend the quality of her work, then she is requesting that these be disclosed. In my view, any such documents, if they exist, would be arguably relevant to the matters at issue in this proceeding, and any such documents are to be disclosed by the College to the applicant and the other respondents and filed with the Tribunal.
[25] The applicant also makes reference to a handwritten note made by Dr. Patodia regarding the incident on November 2, 2006. To date, only the first page of this handwritten note has been disclosed and filed. On the face of the document, it is clear that the note continues onto at least one other page and perhaps more. Accordingly, I order the respondent College to produce a complete copy of the handwritten note by Dr. Patodia regarding the incident on November 2, 2006, and disclose the complete document to the applicant and the other respondents and file it with the Tribunal.
[26] The applicant also has requested disclosure of copies of the mid-term and final examinations that she wrote in Community Health which she was determined by the College to have failed. Once again, these documents are arguably relevant to the issues raised in this proceeding, and in particular her allegation that the College refused to rectify her grade for discriminatory reasons. While I appreciate that this allegation is disputed, the Tribunal requires disclosure of these examinations in order to have a proper evidentiary basis to determine this issue. Accordingly, the respondent College is order to produce to the applicant and the other respondents and file with the Tribunal a copy of the applicant’s mid-term and final examinations in the Community Health course.
[27] I appreciate that the respondent College has stated that it has agreed to make its files available for other parties to review. However, under the Tribunal’s Rules, the College, as a party respondent to this proceeding, has an obligation to produce these documents to the other parties, as opposed to simply making them available for review.
[28] The respondent College also has raised an issue that the applicant has in her possession records relating to clients that she attended at the clinic. If the applicant indeed has any such records in her possession, she is required to make full and complete disclosure to the respondents of all such documents. In addition, the respondent College has raised an issue regarding the applicant’s complaint to the MTCU and her failure to disclose documents relating to this complaint. I see from the file that the respondent College has obtained a copy of the complaint filed by the applicant with the MTCU and also has a copy of the MTCU’s decision letter dated May 16, 2007. If the applicant has any other documents or records in her possession relating to her complaint to the MTCU, any such documents would be arguably relevant to the matters at issue in this proceeding, and the applicant shall disclose any such documents to the respondents.
[29] The disclosure and filing of materials ordered in this Decision shall be made within 14 calendar days of the date of this Decision. The sole exception may be the clinical records and only if such records are not in the College’s power to disclose, in which case the College shall so advise the Tribunal within 7 calendar days in accordance with the direction given above.
CASE MANAGEMENT
[30] The hearing in this matter is scheduled for January 28, 2011. By no later than January 8, 2011, the parties are required to serve and file a list of witnesses, a description of what each witness will say, and a list of the documents they intend to rely upon at the hearing. The parties also are required to file with the Tribunal a copy of the documents they intend to rely upon at the hearing.
[31] I have spent a considerable amount of time reviewing the materials filed to date in this matter. I appreciate that none of the parties is represented by legal counsel. To date, there have been voluminous materials filed by all parties in a piecemeal fashion, with documents coming in at various dates and times, often appended to e-mail correspondence. This material needs to be organized in a comprehensible fashion in order to proceed with a meaningful hearing.
[32] Accordingly, when filing documents with the Tribunal by the January 8, 2011 deadline, each party shall ensure that all documents they intend to rely upon are filed with the Tribunal, even if these documents previously have been provided. The documents shall be organized in a chronological fashion in a bound volume or binder, with each document separated by a tab or with all pages numbered consecutively. At the front of the bound volume or binder, each party shall provide an index setting out a brief description of the nature of the document using the following standard format: “[nature of document – i.e. letter, memo, handwritten notes etc.] dated [date] from [name] to [name]”. In the right hand column, each document shall show the tab or page number at which the document can be found.
[33] I also note that some of the parties have provided written statements from certain individuals or have suggested that the Tribunal contact certain individuals or organizations to obtain information. In the current system, it is each party’s responsibility to bring to the hearing any evidence upon which they seek to rely in support of their position in the case. Generally speaking, it is not the Tribunal’s role to seek out such information. If a party intends to rely upon relevant and admissible evidence from a person, that person needs to appear and testify at the hearing. A summons may be obtained from the Tribunal if required to compel a person to appear as a witness. Finally, I note that character evidence generally is not admissible at a hearing before the Tribunal.
[34] If any of the parties needs further assistance or information to prepare for the hearing, they should review the Guide to Preparing for a Hearing before the HRTO, which may be accessed at http://www.hrto.ca.
Dated at Toronto, this 13th day of December, 2010.
“Signed by”
Mark Hart
Vice-chair