Mir Kamal v. Federation of Law Societies of Canada, 2011 HRTO 1459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mir Kamal

Applicant

-and-

Federation of Law Societies of Canada

Respondent

DECISION

Adjudicator: Eric Whist

Date: August 3, 2011

Citation: 2011 HRTO 1459

Indexed as: Kamal v. Federation of Law Societies of Canada

APPEARANCES

Mir Kamal, Applicant ) Self-represented

Federation of Law Societies of Canada, Respondent ) William McDowell, Counsel

1This Application was filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in the provision of services on the basis of reprisal or the threat of reprisal.

2The applicant is an individual who has received legal training and has practiced as a lawyer in another jurisdiction. The applicant has been seeking a Certificate of Qualification that would allow him to practice law in Canada. The respondent, the Federation of Law Societies of Canada, is responsible through the National Committee for Accreditation ("NCA") for evaluating the legal training and professional experience of individuals with foreign or non common law legal credentials who wish to be admitted to the common law bar in Canada. The Application appears to allege that the NCA's decision to require the applicant to write two examinations in response to his 2009 application for a Certificate of Qualification was an act of reprisal.

3The Application was filed on July 16, 2010. On April 14, 2011, the Tribunal issued a Case Assessment Direction ("CAD") directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

4The summary hearing was held on July 20, 2011. At the outset of the hearing the applicant raised a preliminary concern that the Tribunal Vice-chair who conducted the mediation held on April 5, 2011 was biased and that this issue needed to be resolved prior to the summary hearing proceeding. It appears that the applicant's principal concern was whether the hearing would proceed in a fair and just manner (as opposed to the need for a further mediation). I indicated that I did not need to hear about the particulars of what may have happened at the mediation and I provided assurances about my neutrality in presiding at the hearing. The respondent did not indicate any interest in further mediation. The parties agreed to proceed.

BACKGROUND

5The applicant has been involved in a lengthy effort to obtain his Certificate of Qualification. The NCA reviewed his legal credentials and experience in 2000 and in November 2000 recommended that the applicant write 12 examinations to demonstrate his legal competencies. The applicant passed seven of these examinations and was unsuccessful in five. He rewrote one of his unsuccessful examinations and failed again. Under the NCA requirements at the time this second unsuccessful attempt to pass a required examination rendered the applicant ineligible for his Certificate of Qualification.

6The applicant filed a human rights complaint with the Ontario Human Rights Commission in June 2005 naming the NCA as the corporate respondent as well as a further personal respondent and alleging discrimination on the grounds of ethnic origin, place of origin and citizenship. The parties agreed to mediate this dispute and in April 2006 a settlement was reached. Under the terms of the settlement the applicant was given the opportunity to rewrite each of the five examinations he had earlier failed. The minutes of settlement contained a full and final release in which the applicant discharged the NCA from any future actions arising out of his complaint or in any way related to his relationship with the NCA. The applicant subsequently wrote all five examinations identified in the terms of the settlement and failed to pass all five.

7The applicant applied to the Divisional Court for judicial review of certain actions of the NCA and asking that he be issued a Certificate of Qualification. The Divisional Court dismissed the application for judicial review.

8In 2009 the applicant applied again for a Certificate of Qualification. The NCA reviewed the application and determined the applicant had to demonstrate competence in Canadian Administrative Law and Professional Responsibility. The applicant passed the required examination in Professional Responsibility but failed the examination in Canadian Administrative Law.

9On July 16, 2010 the applicant filed his Application with the Tribunal alleging reprisal based, it appeared, on the NCA obliging him to write these two further examinations.

SUBMISSIONS

10The applicant submits that his case should be seen in the context of his efforts to date to obtain a Certificate of Qualification as well as his personal circumstances. He submits that he was originally obliged to pass twelve examinations and has now passed eight. The applicant submits that other candidates he is aware of have been asked to write a total of three to five examinations. He submits that given the number of examinations he has successfully passed the NCA should have decided when reviewing his application in 2009 to award his Certificate of Qualification. He further submits that the NCA should have considered the applicant's personal circumstances; that he is 60 years old, that he has medical issues, that if he was to practice law in Canada it would only be for a short period of time, until he retired at sixty five years of age. He submits he does not know on what basis the NCA obliged him to write these further two examinations, that perhaps it is related to the applicant's prior human rights complaint. The applicant submits that perhaps the reason he had to write these two further examinations was because the evaluation of his legal education and experience was not done by a committee, but by a single person, namely the NCA's Managing Director who is not a lawyer by training.

11The respondent submits that the NCA has a duty to enforce standards in order to protect the public. The NCA originally evaluated the applicant's experience and education and required the applicant to write twelve examinations. The applicant passed seven and failed five before filing a human rights complaint alleging that the NCA had acted in a discriminatory manner. The respondent submits that it is significant that this complaint was settled on the basis that the applicant would be given the opportunity to rewrite the five examinations he had failed. The respondent submits that this settlement means that it is not open to the applicant to now dispute the overall number of examinations the applicant should be required to write as part of his case before the Tribunal. The issue, the respondent submits, is what happens in 2009 when the applicant re-applies for his Certificate of Qualification and how he was treated in this process by the NCA.

12The respondent submits that there are clear reasons why in 2009 the applicant was required to pass two further examinations. The respondent submits that the applicant had to take an examination in Personal Responsibility because in 2009 the NCA changed its policies and established that candidates for a Certificate of Qualification had to demonstrate a newly defined competency in Professional Responsibility. The respondent submits that its requirement that the applicant be required to pass a Canadian Administrative Law examination was reasonable and understandable given the nature of this required competency. The respondent submits that the applicant's contention that he should be given his Certificate of Qualification notwithstanding his failure to pass the Canadian Administrative Law examination challenges the integrity of the NCA and its responsibility to appropriately evaluate candidates to practice law in Canada. The respondent submits that the applicant's request that the NCA consider his age, health and other personal circumstances cannot override the NCA's mandate to evaluate the competency of candidates to practice common law in Canada.

13The respondent submits that, most importantly, the applicant has not clearly explained what action or actions of the respondent constitutes reprisal. The respondent submits the applicant has provided no particulars to support the contention that he has been the subject of retaliatory action. The respondent submits that if the applicant is arguing that the decision to oblige the applicant to write two examinations in 2009 constitutes reprisal he has also provided an alternative theory for this decision, that it was because the NCA's Managing Director lacks expertise in evaluating legal experience and training. The respondent submits that an act based on a lack of expertise cannot be an act of reprisal because reprisal requires an intention to negatively treat a person based on his or her efforts to claim or enforce their rights under the Code.

14In his reply submissions the applicant restated his concerns about the expertise of the Managing Director and that this lack of expertise may have contributed to the decision to make him write the two further examinations. The applicant submits that the Managing Director may have acted in a "mechanical way" in evaluating the applicant and that he was unnecessarily asked to write these two examinations. The applicant submits that while the Managing Director may not have intentionally treated him in discriminatory manner the applicant felt harassed.

ANALYSIS AND DECISION

15Section 8 of the Code states that:

Reprisals- Each person has a right to claim and enforce his rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe the right of another person under this Act without reprisal or threat of reprisal for doing so.

16In Noble v. York University, 2010 HRTO 878, the Tribunal outlined the requirements to establish reprisal.

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd, 2001; Ketola v. Value Propane Ltd.; Moffatt v. Kinark Child & Family Services (1998). (para 31).

17In the present case it was initially difficult to establish what action or actions of the respondent the applicant was alleging constituted reprisal. In my view, the Application did not clearly identify the alleged act of reprisal and the applicant's initial submissions were also not particularly clear on this point. Eventually the applicant more clearly stated that he believed that following his 2009 application to the NCA he should have been awarded a Certificate of Qualification but that the respondents obliged him to write two further examinations and that it was this decision to make him write these examinations that constitutes an act of reprisal. The applicant was of the view that the respondent ought to have considered the total number of examination he has passed, that the respondent should have considered his personal circumstances.

18The applicant did not provide any submissions on why, in his view, the respondent would have intentionally made him write these examinations because the applicant had, in the past had made a human rights complaint. His explanation for why he believed he was obliged to write the two further examinations was because the NCA's Managing Director lacked the expertise to evaluate applicants for a Certificate of Qualification.

19The respondent submits that there is a clear, non-discriminatory explanation for requiring the applicant to write these two further examinations. The applicant was required to demonstrate competency in a newly defined competency, "Professional Responsibility" and had to pass an examination in Canadian Administrative Law, another required competency. I note the applicant had failed to pass a Canadian Administrative Law examination on two previous occasions; it was one of the five examinations the applicant failed when the applicant initially wrote twelve examinations and he failed it again when he rewrote the five examinations following the settlement of his first human rights complaint.

20In my view the applicant is still keenly pursuing his interest in obtaining a Certificate of Qualification and is frustrated in his efforts to date, in part because he believes his personal circumstances should be considered as part of the application process and in part because he believes he has been unfairly treated relative to other candidates. He suggests that the respondent's incompetency may be the reason that he has had to write two further examinations. However, he has essentially presented no case to suggest that the respondent's actions have been in reprisal for his past efforts to pursue his rights under the Code.

21Rule 19A.1 of the Tribunal's Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

22Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

23In the present case I find there is no reasonable prospect that evidence the applicant has or that is reasonably available to him will show a link between the decision to have him write two further exams and his previous efforts to enforce his rights under the Code.

24For these reasons the Application is dismissed