HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farideh Ghafourian

Applicant

-and-

The Governing Council of the University of Toronto

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 26, 2010

Citation: 2010 HRTO 675

Indexed as: Ghafourian v. University of Toronto

WRITTEN SUBMISSIONS BY

Farideh Ghafourian, Applicant ) On her own behalf

The Governing Council of the University ) Sari Springer, Counsel

of Toronto, Respondent )

[1] The purpose of this Interim Decision is to schedule a half-day hearing to hear oral evidence and submissions from the parties on whether the Application should be dismissed because it was filed more than one year after the last alleged incident of discrimination.

[2] The time requirements for filing applications with the Tribunal are provided for in section 34 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.

[3] The applicant, who self identifies as a non-white Muslim woman from Iran, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on September 28, 2009, which alleged that the respondent discriminated against her with respect to education services because of her place of origin, citizenship and ethnic origin.

[4] Specifically, the applicant alleged that in April 2005, the respondent denied her admission to a Master of Arts (“M.A.”) program. Instead, the respondent granted her admission into a Master of Education program in May 2005. She also alleged that at the end of 2005, the respondent investigated her for unknown reasons. She stated that two professors asked her about her age, religion, ideology, and nationality.

[5] In 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.

[6] In the narrative of her Application, the applicant stated that on December 19, 2008 she received a number of documents through a freedom of information request:

Amongst the documents, there was an e-mail indicating that I was accepted for the M.A. program but my spot was given to another student based on an off campus meeting and a note produced by a feminist scholar (Please see attached email of March 14, 2005 as Exhibit 4). I am not sure why I was discussed in an off campus meeting but I know that by the end of the year, I was being investigated for some unknown reason to me. I was asked about my age, religion, ideology, and nationality by professors, two in particular.

[7] The applicant further stated that she filed a follow up freedom of information request and an appeal, and on July 20, 2009 received further documents, including an e-mail dated February 19, 2005 that confirmed that she was ranked in the high group for admission to the M.A. program.

[8] The 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.

[9] Specifically, the respondent stated that the last alleged incidents of discrimination are April 9, 2005 (the date that the respondent informed the applicant that she was not accepted into the M.A. program), and the end of 2005 (the date that the respondent allegedly investigated her), but the applicant did not file her Application with the Tribunal until September 28, 2009. The respondent further 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.

[10] The 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 the feminist scholar’s note referred to in the March 14, 2005 e-mail is proof of “favourtism and discrimination” against her, and that she experienced “harassment, discrimination, and humiliation” on a “daily basis” from 2005 onwards.

[11] On February 15, 2010, the applicant filed a number of documents with the Tribunal, including a letter dated February 26, 2008, which was addressed to the Appeal Board of the School of Graduate Studies of the University of Toronto and stated, in part: “I did not find Professor Leduc’s curiosity appropriate asking me if I was Armenian because my last name ended with ‘ian’. I replied that I am Iranian Muslim.”

[12] In [Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241](https://www.minicounsel.ca/hrto/2009/1241), 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.

[13] In 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.

[14] In my view, there are credibility issues in the applicant’s pleadings and documents with respect to the issue of when she discovered that the respondent had discriminated against her. On the one hand, she stated that she only discovered the discrimination on July 20, 2009 when she received the e-mail stating that she was ranked in the high group for admission to the M.A. program. On the other hand, she also stated that she experienced harassment and discrimination on a daily basis from 2005 onwards, that she was applying more than one year from the last event because she was not aware that her spot for the M.A. Program was given to another applicant based on a note in an off-campus meeting, and that the note is proof of discrimination against her. The applicant stated that she became aware of this note on December 19, 2008. She also submitted a letter dated February 26, 2008, which objected to a professor asking her a question about her place of origin and ethnic origin.

[15] In my view, it will be difficult to determine the timeliness issue without an oral hearing where the applicant will be expected to testify about whether her delay in filing her Application was incurred in good faith. The respondent should also call one witness to testify about how the respondent is substantially prejudiced by the applicant’s delay in filing her Application. Both the applicant and the respondent’s witness should be prepared to testify, be cross-examined by the other party, and answer questions from the Tribunal.

[16] The Tribunal’s Registrar will schedule a half-day hearing to hear oral evidence and submissions from the parties only with respect to the preliminary issue of timeliness. The parties are directed to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure on disclosure of documents and witnesses only with respect to the timeliness issue.

[17] I have noted that the applicant has filed a significant number of documents with the Tribunal that do not appear to be relevant to the matters at issue in this Application, and she has not made any effort to explain how they are relevant. The Tribunal therefore orders the applicant to cease filing documents that are not relevant to this Application.

[18] I am not seized of this matter.

Dated at Toronto, this 26th day of March, 2010.

“Signed by”

Ken Bhattacharjee

Vice-chair