Modares v. Professional Engineers of Ontario, 2011 HRTO 1606

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamad-Ali Modares

Applicant

-and-

Professional Engineers of Ontario, L3 Communications/CMRO, Borden Ladner Gervais, Arthur Van Vuuren, Colleen Shannon, William (Bill) Hui, Bruce G. Matthews, Roger Barker, Mary (Jane) Phillips, Kim Allen, and Robert Bell

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 26, 2011

Citation: 2011 HRTO 1606

Indexed as: Modares v. Professional Engineers of Ontario

WRITTEN SUBMISSIONS BY

Mohamad-Ali Modares, Applicant ) Self-represented

INTRODUCTION

1The purpose of this Decision is to determine whether the Application is within the jurisdiction of this Tribunal.

BACKGROUND

2The applicant, who self identifies as a Muslim originally from Iran, has an undergraduate degree in engineering and several post-graduate degrees in management and engineering.

3The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 4, 2011, which alleged that the respondents discriminated against him with respect to membership in a vocational association and employment because of his place of origin, creed, and record of offences. He subsequently sent the Tribunal a letter, which requested that “record of offences” be removed as a ground.

4The narrative of the Application, which details alleged incidents that occurred between 2000 and 2007, is 51 pages long and single-spaced. The applicant also filed hundreds of pages of supporting documents. Notwithstanding the length of the Application, and the occasional use of the words “harassment” and “discrimination”, there is little explanation as to how the alleged incidents are connected to his place of origin and creed.

5In section 8 of his Application (“What Happened”), the applicant provided the following summary of his allegations:

The primary respondent [Professional Engineers of Ontario] violated my rights on three occasions.

Occasions 1: I could not get my P. Eng. in 2001 due to the discriminations by PEO compared to the qualifications of engineers who were candidate at that time. They all got their license almost 10 years ago and I never got.

Due to the lack of P. Eng. license, I could not find any job in the engineering or practice my profession in Canada.

Occasion 2: One of members of PEO named Arthur Van Vuuren became my manager in October 2002, when I was an employee of L3 Communications/Spar Aerospace. Arthur Van Vuuren in two occasions in 2002 and 2003 unfairly did not allow me to promote to a higher group which I deserved, and finally laid off me on April 4, 2003. Due to his discrimination, supported by the employer, I lost my job. I had a right of recall for two years that they did not respect it. I did not get my job back, also I never was able to get another job even in the same level because the employer and Arthur Van Vuuren ruined my employment opportunities during reference checks by potential employers. I filed a complaint against the Union with Ontario Labour Relations Board but the remedy was not fair (November 2004, OLRB closed the case) and the Board did not place me in my job that I deserved, the job that was taken from me by a member of PEO “Arthur Van Vuuren”.

Since 2003, I have been either doing low level job or have been unemployed.

Occasion 3: I filed a complaint against Arthur Van Vuuren with PEO in October 2006 to revoke his license. L3 Communications/Spar Aerospace engaged Borden Ladner Gervais against me in my complaint with Ontario Labour Relations Board and lost the case in November 2004. When I filed my complaint against Van Vuuren with PEO, L3/Spar and Arthur Van Vuuren engaged a lawyer “Colleen Shannon” from the same “BLG” who was (& is) a professional engineer.

PEO not only allowed illegitimate intervention of the employer and Borden Ladner Gervais but also endorsed all false allegations of communications/Spar Aerospace and Arthur Van Vuuren as truths and in fact formed a coalition with the employer and the law firm in harassing me. In November and December 2007, PEO repeated all false claims of the employer and the law firm as facts and announced Arthur Van Vuuren as not guilty and dropped the complaint.

6In section E12 of Form 1E of his Application (“Explain why you believe you were discriminated against based on your creed”), the applicant also stated:

Ethnic origin, religion, & other factors like retaliation & harassment that are not above listed & I explained in the application. Majority of violations of human rights do not fit any of the grounds defined by HRTO including retaliation, harassment, & violations due to personal benefits. Then can be claimed no human right was violated? [Emphasis added]

The applicant made a similar statement in section E5 with respect to place of origin.

7In reviewing the Application, the only explicit link that I can find to the applicant’s place of origin and creed is an allegation that after Mr. Van Vuuren laid him off, he hired a engineer, who is also Muslim and originally from Iran, in order to block a human rights complaint by the applicant based on place of origin and creed.

8In addition, in section 7(c) of his Application (“What was the date of the last event?”), the applicant wrote: “14/12/2007”. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), he wrote:

I filed a complaint against a member of PEO in October 2006. PEO dropped my complaint in favour of its member and his employer L3 Communications/Spar Aerospace in Dec 2007, his employer was my previous employer. Discrimination against me started by PEO in 2001 and continued by a member of PEO & others. Since 2001, I have spent a lot of time and reached to many resources including the Prime Minister, which was useless. L3/Spar that was also encouraged by the unfair decision of PEO in 2007 has ruined my employment opportunities during reference checks up to even recently, then the last event is in fact recent. I lost hope in the system, I will explain under Sec. 20. I searched & found out that I may get find a resolution through the Human Rights Tribunal of Ontario.

9On May 26, 2011, the Tribunal’s Registrar issued a Notice of Intent to Dismiss (“NOID”), which informed the applicant that his Application appears to be outside this Tribunal’s jurisdiction for the following reasons:

• The Application was filed more than one year after the last incident of discrimination described in the Application, and he did not fully explain how the delay was incurred in good faith and why he believed that no substantial prejudice will result to any person affected by the delay.

• Some of the issues raised relate to the conduct of a lawyer representing a party in another legal proceeding. The relationship between a lawyer and an opposing party is not covered by the Code.

• The Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code that were allegedly committed by the respondents.

10On June 21, 2011, the applicant filed written submissions in response to the NOID. Instead of squarely addressing the issues set out in the NOID, much of the 50-page, singled-spaced submissions criticized the Tribunal for issuing the NOID and expressed dissatisfaction with the Canadian justice system in general.

ANALYSIS

11Turning to the first issue, which the applicant did address, the statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in ss. 34(1) and (2) of the Code:

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.

12In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 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.

13In his written submissions on the timeliness issue, the applicant offered two alternate arguments. First, he stated that, if his Application was not filed out of time, it was because he only found out about the one-year statutory deadline in March 2011. He also stated that, because of his lack of success in filing or attempting to file numerous complaints between 2001 and 2007 to the Professional Engineers of Ontario, the Canadian Council of Professional Engineers, his employer, his union, the Ontario Human Rights Commission, the Ontario Labour Relations Board, many lawyers, the Prime Minister, the Minister of Labour, and the Law Society of Upper Canada, he hesitated to file another complaint and expose himself as a “target for scrutiny and watch of the Canadian government.”

14Second, he argued his Application was timely because it referred several times to his former employer ruining his employment opportunities during reference checks, and that the last reference check occurred two weeks before he filed his Application.

15I find that, in its best light, the last alleged incident of discrimination occurred in 2003 or 2004, when L3 Communications/CMRO (then known as L3 Communications/Spar Aerospace) and Mr. Van Vuuren allegedly provided the first negative reference about the applicant to a potential employer after laying him off. The applicant has not linked any of his subsequent allegations to his place of origin and creed.

16In Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, at para. 45, the Ontario Divisional Court adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

17In Visic, the Divisional Court upheld a decision of the Ontario Human Rights Commission (the “Commission”) which declined to deal with a complaint on the basis that it had been filed beyond the six-month time limit then in the Code (the Code was subsequently amended to provide for the current one-year time limit). The Commission did not accept the complainant’s argument that a university’s repeated reliance on a transcript claimed to be discriminatory extended the limitation period in the Code.

18In Mafinezam v. University of Toronto, 2010 HRTO 1495, this Tribunal adopted the test in Visic, and stated at para. 13 that “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.” In that case, the respondent refused to allow the applicant to attend events at a centre at the university on an ongoing basis after issuing him a trespass notice. The Tribunal found at para. 14 that the continuing effect of the trespass notice did not constitute further incidents of discrimination or a series of incidents within the meaning of s.34(1).

19The facts of the Application at hand are similar to those in Visic and Mafinezam, and I find the rationale in those decisions persuasive. In my view, the continuing effect of a decision to give the applicant a negative reference does not constitute further incidents of discrimination or a series of incidents within the meaning of s. 34(1). If it did, then there would effectively be no time limit on filing an application. This cannot be a result intended by s. 34(1). See Mafinezam, supra, at para. 14.

20Turning to the applicant’s explanation for the delay, I am not satisfied that his seven to eight-year delay in filing his Application with the Tribunal was incurred in good faith. His explanation for the delay shows a clear lack of due diligence. The applicant is a sophisticated individual, who is educated at the post-graduate level, and, as demonstrated by the numerous legal actions and complaints that he filed about this matter between 2001 and 2007, is well aware of his options for pursuing his rights.

21In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. It is also not necessary to fully consider the other two issues set out in the NOID.

ORDER

22The Application is dismissed.