HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pooya Pakarian
Applicant
-and-
Robert Chen, Michael Angel and Aimee Nelson
Respondents
INTERIM DECISION
Adjudicator: Faisal Bhabha
Indexed as: Pakarian v. Chen
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated October 16, 2009, alleging discrimination in employment and contracts on a number of grounds including place of origin, citizenship, sex and reprisal. The applicant also filed a Request to Expedite Proceedings (Form 14), pursuant to Rule 21.
2The Tribunal issued a Notice of Intent to Dismiss because the Application appeared to have been filed more than one year after the date of the last incident of alleged discrimination. The respondents have not been required to file a Response to the substance of the Application. A preliminary hearing was held on February 1, 2010, to hear submissions from the parties on the issue of delay and the request to expedite.
BACKGROUND
3The following facts are based on the materials filed by the parties and submissions made by the parties during the preliminary hearing. There is little disagreement between them as to the facts.
4In his Application, the applicant alleges discrimination in employment and in goods, services and facilities. The applicant was a post-doctoral research fellow with the University of Toronto and the University Health Network, working under the supervision of the respondent Robert Chen. The applicant describes the relationship as being both paid (employment) and educational (service). He alleges that he was treated differentially based on his background and place of origin, as well as sexually harassed, which contributed to a poisoned workplace. He alleges damages in terms of income and professional opportunity as a result of the respondents’ actions, including reprisals against him for having complained about the matters raised in the Application.
5The applicant began his post-doctoral fellowship on July 1, 2005. The allegations to which his Application relate appear to begin around the summer of 2006 when he alleges two incidents of discriminatory conduct or harassment by the respondents Dr. Chen and Dr. Angel. Over the months of November and December 2006, the applicant alleges that Dr. Chen created a particularly hostile environment for him in the laboratory and, in early 2007, threatened to dismiss him on account of unfounded accusations of poor performance. In early February 2007, the applicant alleges that he complained to Dr. Lang, Dr. Chen’s supervisor, about Dr. Chen’s allegedly shoddy academic and management practices. The applicant maintains that he was unhappy with Dr. Lang’s response.
6At around the same time, the applicant alleges that he requested funding to attend two events, a neuroscience conference and course, which Dr. Chen refused in December 2006 and February 2007, respectively. The applicant maintains that the respondent’s refusal to fund his attendance at these events was based on country-of-origin discrimination and reprisal for past complaints.
7Further conflict between the applicant and Dr. Chen occurred in early April 2007 after the applicant completed a negative evaluation of his experience working in Dr. Chen’s laboratory. The applicant alleges that Dr. Chen again threatened to dismiss him, and compelled him to attend a meeting with Human Resources.
8Around mid-April 2007, the applicant wrote a letter to Kevin Imrie, Vice-Chair of Education, Faculty of Medicine at the University of Toronto, who involved Mohamed Alameddine, Director of International Development and Partnerships, Post Graduate Medical Education at the University of Toronto. Dr. Alameddine investigated the matter with a view to proposing a resolution. Although the applicant was dissatisfied with Dr. Alameddine’s conclusions, he accepted Dr. Alameddine’s recommendation that he cease working in Dr. Chen’s laboratory beginning May 1, 2007.
9The applicant completed his fellowship on June 30, 2007. Following the completion of his fellowship, he engaged a number of complaints processes to address his various allegations relating to the fellowship. For ease of reference, these allegations can be grouped as follows: (1) harassment/discrimination; (2) scientific dishonesty; and (3) misappropriation of intellectual property.
10As the applicant communicated his dissatisfaction with the handling of his complaint by Drs. Imrie and Alameddine, it appears the matter was handed over to Chris Paige, Vice-President Research with the University Health Network (“UHN”). Dr. Paige completed a further investigation of the April 2007 complaint and reported back to the applicant. In his report, dated December 20, 2007, Dr. Paige concluded that no further action was required. In early 2008, the applicant filed an internal complaint with the Faculty of Medicine at the University of Toronto based largely on the April 2007 complaint, and containing similar allegations to those in his Application.
11In February 2008, the applicant filed a complaint against the respondents Drs. Chen and Angel with the College of Physicians and Surgeons of Ontario (“CPSO”), also relating to the subject matter of this Application. At around the same time, he alleges he discovered the “theft” of his intellectual property in the respondents’ research on the Dystonia Project.
12In March 2008, the applicant lodged a further complaint in relation to an instance of alleged scientific dishonesty and misappropriation of intellectual property. The complaint concerned a publication by Dr. Chen in the Journal of Neuroscience, which the applicant believed relied on his research without attribution, and which he claims he only discovered after accidentally encountering the article on the internet. After investigating the applicant’s allegation, the Journal of Neuroscience issued a corrigendum, while finding no intentional misconduct on the part of Dr. Chen.
13On December 8, 2008, the CPSO issued its decision to take no action with respect to the applicant’s complaints. The applicant had a right of appeal, of which he did not avail himself, believing that the CPSO’s decision was based on the fact that he had filed similar internal complaints with the University of Toronto.
14On March 13, 2009, Dr. McKnight issued his decision with respect to the applicant’s internal complaint, indicating that he had worked collaboratively with the UHN in his investigation. He identified two principal concerns raised by the applicant’s complaint: First, the applicant complained about issues that arose during his fellowship. Dr. McKnight concluded that Dr. Paige’s previous investigation had been thorough and that no further action was necessary. The second ground of complaint involved the integrity of the respondents’ research and publications, which Dr. McKnight found were adequately addressed by the Journal of Neuroscience in its issuance of a corrigendum in May 2008.
15The applicant remained dissatisfied with the University’s handling of his complaint. He believed Dr. McKnight had inadequately addressed the two identified issues, and further failed completely to consider the alleged “theft” of the applicant’s intellectual property in the Dystonia Project. He communicated his concerns to the University and, on October 16, 2009, he filed this Application.
16On January 29, 2010, Robert Bell, the President and Chief Executive Officer of the UHN, issued a further report advising the applicant that an investigation into his allegations of intellectual property theft had been undertaken. The investigation concluded that there was no evidence of theft or misuse of the applicant’s intellectual property. Dr. Bell also re-affirmed Dr. Paige’s previous findings with respect to the allegations of racism, discrimination and misconduct and indicated that no further action would be taken.
Analysis
17The respondents asked for dismissal of the Application. Counsel argued that the applicant is out of time within the meaning of s. 34(1)(b) of the Code and that the delay was not incurred in good faith, within the meaning of s. 34(2). The applicant argues that his Application is not out of time because a number of discriminatory incidents comprise a series of events that is ongoing. He further argues that any delay was incurred in good faith.
18The respondents’ position is that the applicant has not established that the incidents about which he complains were part of a “series” of incidents and that, to the extent that any series existed, the latest possible date the last incident could have occurred was June 30, 2007, when his fellowship ended. This, the respondents submit, is especially true with respect to the discrimination/harassment allegations. The respondents acknowledge that the applicant may not have discovered additional facts giving rise to additional allegations against Dr. Chen and Dr. Nelson until March 2008. Either way, the respondents submit that when the applicant filed his Application in October 2009, he was well beyond the one-year deadline for making any of the allegations.
19The respondents further argue that the applicant has failed to establish that the delay, whether of 27 or 18 months, was incurred in good faith. In support of this argument, they point to the series of complaints filed by the applicant with the University of Toronto, the CPSO, the UHN, the Dystonia Foundation and the Journal of Neuroscience. The applicant’s earliest complaint dates to early 2007 while still completing his fellowship. The respondents submit that the applicant continued to access complaints procedures through 2008, and filed his Application only because he was dissatisfied with the results of those procedures. The respondents characterize this as “forum shopping” and argue that “good faith” under the Code cannot be satisfied where an applicant knowingly lets a limitation period pass while he waits to see if he is satisfied with the results in other forums.
20The applicant essentially relies on the same facts as the respondents to argue the exact opposite: he submits that he did his best to pursue his issues through internal complaint mechanisms and turned to the Tribunal only as a last resort. He also argues that as a temporary resident in Canada he was not aware of the institutional landscape for pursuing the enforcement of rights through administrative and legal processes. He further asserts that it took a lot of time and effort to prepare his Application. Upon learning about the Tribunal process, he claims he made good faith efforts to respect the timelines.
21The applicant further argues that good faith is evident in the fact that he deliberately avoided abusing the Tribunal’s process by first pursuing internal remedies with the organizations more directly connected to the allegations. He argues that any delay was caused by those organizations and that he should not be penalized for their failure to respond in a timely manner to his complaints. He argues that it is precisely because those internal processes were insufficient and flawed in addressing the original allegations that he was forced to bring the matter to the Tribunal. For this reason, he argues, the events raised in his Application should be viewed as a series ending only with the last decision of the University of Toronto.
Delay
22Section 34 of the Code provides as follows:
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.
23The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist. Section 34(2) provides the Tribunal with the discretion to assess the good faith of the applicant and the prejudice to any affected person of waiving the time limit. Only after a complete consideration of s. 34 as a whole, and its application to the facts at hand, can the Tribunal decide whether to dismiss for delay.
24Most of this Application concerns events that occurred between 2005 and 2007, more than two years prior to the filing of the Application. However, if the applicant is correct, and all of the incidents can be considered to be part of a series, then it could be said that the series of incidents ended on March 13, 2009, when Dr. McKnight issued the University’s last decision, seven months before the applicant filed the Application.
25The dictionary definition of “series” is: “a number of things or events of the same class coming one after another in spatial or temporal succession” [Merriam-Webster online]. In applying the definition to the facts of this case, it is necessary to determine which events can be grouped together into a “class”, which for the purposes of an Application under the Code, must be defined in relation to discrimination. Therefore, the question to determine is whether the applicant has alleged a number of events relating to discrimination which can be said to have occurred one after another in temporal succession, and if so, when did the last such event occur.
26It is important to emphasize that as a preliminary matter, I am not making any findings about whether the applicant’s allegations do in fact relate to the Code or whether they could sustain a finding that the Code was breached. For the purpose of the issue of delay, my consideration of the applicant’s allegations only looks to the content of the allegations themselves, without deciding whether they are proved.
27It is furthermore important to note that the request for early dismissal was brought by the respondents, and the onus therefore rests with them to establish the fact of delay. Only then does the onus shift to the applicant to demonstrate good faith.
28The respondents urged me to apply the conclusions in Ababio v. Humber River Regional Hospital, 2009 HRTO 286, in which the Tribunal found that an applicant who filed her Application nearly three years after being terminated could not demonstrate good faith because she had been “very active in pursuing a legal remedy to her termination from employment” (para. 18). The applicant in that case had first grieved her termination and gone to arbitration (where she concluded minutes of settlement with the employer), then filed a duty of fair representation complaint against her union, and only at the conclusion of those proceedings filed her Application with the Tribunal, which included seeking to have the minutes of settlement set aside.
29The facts of this case are markedly distinct from Ababio, where the adjudicator easily concluded that there was delay and moved on to consider whether the applicant had met the test of “good faith”. In this case, the respondents must first establish the fact of delay before the applicant is required to prove good faith. The applicant has made allegations which, if successful, could fall within the definition of a “series of events”, bringing the Application within the Code limitation period. However, the question at this preliminary stage is whether, on a balance of probabilities, the respondents have established that the Application is late. In the absence of oral evidence addressing contested and unclear facts, I am unable to reach such a conclusion.
30In the light of my finding that the respondents have failed to establish that the Application is late, it is therefore unnecessary for me to consider the parties’ arguments regarding good faith. Having reached this conclusion does not mean I have found the applicant to have established his case, nor does it mean I have concluded that the allegations do in fact give rise to a series of events within the meaning of section 34. I have only concluded that there is no basis to dismiss the Application at this time.
31The matter will proceed to an oral hearing. After the applicant has called his evidence, the respondents will not be precluded from making further submissions on the issue of delay or any other requests.
Additional Respondents
32The applicant’s case rests on allegations against individuals acting in the course of their duties with academic institutions, namely the University of Toronto, Faculty of Medicine and the University Health Network. He also makes allegations of a systemic nature regarding the internal complaints processes. Yet, the applicant has not named respondents who could potentially be liable for many if not all of those allegations.
33Pursuant to Rule 1.7(b) of the Rules, the Tribunal has the power to add or remove a party. The Tribunal’s approach to the addition (and removal) of respondents is summarized in Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14.
34If the applicant wishes to continue to argue that his allegations constitute a “series of events”, he must file a Form 10 seeking to amend his Application to add the two academic institutions that are implicated in his claims of discrimination relating to the internal investigation processes. The respondents will have an opportunity to respond in writing to the request.
Request to Expedite
35The applicant also requests that the Application be expedited. In support of his request, he relies on the fact that he no longer resides in Ontario and distance makes it difficult for him to continue to participate in these proceedings. He also believes that the respondents are tampering with evidence through the passage of time, though this claim appears unsubstantiated. The respondents oppose the request to expedite.
36In considering requests to expedite, the Tribunal must balance the demonstrable urgency of the request with any prejudice to the opposing party as well as with consideration of the Tribunal’s institutional resources. Because granting a request to expedite has a potentially negative impact on all parties engaged at any given time in the human rights system, the Tribunal will be reluctant, save in very narrow circumstances, to grant such a request. In Weerawardane v. 2152458 Ontario Ltd. 2008 HRTO 53 at para. 9, the Tribunal stated:
For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.
37The applicant has failed to demonstrate truly urgent circumstances requiring immediate resolution of the dispute.
ORDER
38The Tribunal orders as follows:
The respondents’ request to dismiss the Application on the basis of delay is denied.
The applicant is directed, as soon as possible, to file a Form 10 requesting to amend his Application naming the University of Toronto, Faculty of Medicine and the University Health Network as organizational respondents.
The matter shall be scheduled for two days of hearing. The applicant will be expected to call his evidence, after which the parties may make further submissions on the issue of delay. The respondents are not required to attend the hearing with any of their witnesses.
The applicant’s request to expedite the proceedings is denied.
Dated at Toronto, this 1^st^ day of March, 2010.
“Signed by”
Faisal Bhabha
Vice-chair