Khan v. Seneca College, 2011 HRTO 148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wasi Khan

Applicant

-and-

Seneca College of Applied Arts and Technology and Karen Murkar

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 20, 2011

Citation: 2011 HRTO 148

Indexed as: Khan v. Seneca College

1The applicant filed his Application on September 28, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of race, place of origin, ethnic origin and age. The allegations concern two competitions, which took place in 2002 and 2004 respectively, and an ongoing failure to hire him for part-time teaching between January 2008 and the present.

2The respondents filed a Response and a Request for Order During Proceedings (Form 10) in which they ask the Tribunal to dismiss the portion of the Application dealing with the events in 2002 and 2004 for delay, and dismiss the remaining portion of the Application as disclosing no prima facie case. The applicant filed a lengthy Reply in which he deals with, among other things, the respondents’ request to dismiss.

DELAY

3Section 34 states, in part:

(1) If a person believes that any of her 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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

5The applicant acknowledges that the job competitions about which he complains are outside the one year time limit, but states that the delay was incurred in good faith. He does not – quite rightly, given both the gap in time and the discrete nature of the allegations – assert that they were part of a series of incidents.

6The applicant’s explanation for the delay is that he feared “reprisal and retribution.” He repeats this explanation several times in his Reply but provides no further basis for his fear of reprisal. It is clear from his Reply that he continued to be employed by Seneca following these competitions, but the fact of an ongoing relationship alone, without further explanation, is not sufficient to constitute good faith.

7Given the absence of evidence of good faith for the eight and six year delay concerning the 2002 and 2004 competitions, the Tribunal does not have the jurisdiction to deal with those allegations. Accordingly, those allegations labeled the “first” and “second event” respectively in the Application are dismissed.

NO PRIMA FACIE CASE

8In his Application, the applicant’s remaining allegation against the respondents is as follows:

I was discriminated in a hiring decisions during Winter 2009, Summer 2009, Fall 2009, Winter 2010, Summer 2010, and Fall 2010 Semester. Karen Murkhar, Chair of Financial Services, School of Business, Seneca College was involved. Teaching assignments are given to other faculty members who are her favorite. During a meeting she said to me that I’ve to give preference to part-time faculty whom I’ve hired.

9On its face, this allegation suggests that the respondents relied on factors unrelated to the Code in making hiring decisions. On this basis, the respondents ask that the remaining portion of the Application be dismissed. However, in his Form 1A, the applicant does indicate that “females are given priority in assigning courses” and “young faculty were given more load of courses and favoured.” No further particulars are given with respect to these allegations in either the Application or the Reply.

10The applicant is directed to deliver to the respondents and file with the Tribunal written submissions setting out the basis on which he makes the assertion that women and younger faculty were given preferential treatment. These submissions must be delivered and filed no later than February 5, 2011. At the same time the applicant must file a Form 23 Statement of Delivery confirming delivery of his submissions to the respondent.

11The respondents may deliver to the applicant written submissions in response and file them with the Tribunal together with a completed Form 23 by February 19, 2011

12After reviewing the parties’ submissions, the Tribunal will issue a decision with respect to its jurisdiction over the remaining allegations.

13I am not seized of this matter.