Nemati v. Ontario College of Teachers, 2010 HRTO 255

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daryoush Nemati

Applicant

-and-

Ontario College of Teachers

Respondent

INTERIM ORDER

Adjudicator: Judith Hinchman

Date: February 3, 2010

Citation: 2010 HRTO 255

Indexed as: Nemati v. Ontario College of Teachers

1This is an Application filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). The Complaint which underlies the current Application was filed with the Ontario Human Rights Commission on August 29, 2004 and abandoned upon the filing of the present Application with the Tribunal. The Application alleges discrimination in employment based on place of origin. A hearing is scheduled for March 31, 2010.

2The purpose of this Interim Order is to address the applicant’s Request for a production order and provide direction regarding a dispute concerning the Tribunal’s authority to order certain remedies.

Background

3On January 12, 2000, the applicant applied for membership with the respondent, the Ontario College of Teachers (the “College”). The applicant felt that he provided the College with all the requirements necessary for consideration of his application.

4At the time the applicant applied to the College, applicants were instructed to contact their educational institutions and licensing authorities to ask that original documents be sent directly to the College. These included: post-secondary academic records, teacher education academic records, and a statement of professional standing from each jurisdiction in which applicant has been certified to teach.

5The applicant’s education and experience was gained in Iran. The applicant told the College that he was a Convention refugee and thus he would have difficulty arranging for documents to be sent directly from Iran to support his qualifications.

6The applicant alleges that based on his ethnic origin, the respondent failed to accommodate his status as a refugee with respect to the certification requirements.

7Recently the applicant became aware of the case Siadat v. Ontario College of Teachers, 2007 CanLII 253 (On S.C.D.C.), where the Ontario Divisional Court found that requiring original or government certified documents from the place of origin for an applicant to the College was prima facie discrimination under the Code. The applicant submits that the facts of this case are exactly similar to his situation.

8As a result of Siadat, the applicant requests that certain information in the respondent’s possession regarding Ms. Siadat be disclosed to him.

9The parties describe the documents sought by the applicant differently. I am satisfied the respondent’s description of the documents is more accurate. The documents sought are:

1. Reasons for Decision for the Registration Appeals Committee: review of Fatima Siadat (RP# 2001-85-273466);

2. Summary of Evaluation of Qualifications Fatima Siadat (internal document prepared by College staff for use by the Registration Appeals Committee in 2008); and

3. Current status of application.

Production Requests

10The Tribunal has held that parties must disclose non-privileged documents that are “arguably relevant” to an issue in the Application, although the disclosed documents may not necessarily be admitted as relevant at the hearing: Lampi v. Princess House Products Canada, 2008 HRTO 1. Arguable relevance is not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171.

11The respondent does not agree that the documents requested are arguably relevant to this Application. While the respondent’s practices following the Siadat decision may be relevant to any future compliance orders, the issue before the Tribunal is whether the applicant experienced discrimination on the basis of his place of origin from the time his application to the College was first considered in January 2000 up until he filed his Complaint in August of 2004.

12The applicant wishes to have the requested information to show that the evaluation of his credentials was also discriminatory as the Court found was the case for Ms. Siadat. They apparently both were trained in Iran, came to Canada as refugees, and applied to the College. If this were a case in which the applicant was arguing that the manner in which his foreign credentials were considered and assessed was discriminatory, then the experience of a similarly situated applicant might well be arguably relevant. I need not determine that because the allegations in this case are that the respondent’s requirements were in and of themselves discriminatory such that the applicant has not had an opportunity to have his qualifications assessed at all.

13It will, of course, remain open to the parties to argue that the factual underpinnings and the legal conclusions reached in the Siadat decision are or are not relevant to the case at hand. Notwithstanding this, for the reasons above I am not satisfied that the first two categories requested have arguable relevance to this case. With respect to the third request for the current status of Ms. Siadat’s application with the College, the applicant has not described the relevance that this information has to his claim of discriminatory treatment between January 2000 and August 2004 when he filed his Complaint. Although the bar for arguable relevance is low, I am not satisfied that the applicant has demonstrated that that in this case.

Remedies

14The respondent disputes the Tribunal’s jurisdiction to award certain remedies that the applicant seeks. This issue is more appropriately dealt with by the adjudicator at the hearing.

Order

15The Request for production Order is denied.

16I am not seized.