HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bakhtier Shakhnazarov
Applicant
- and-
George Brown College
Respondent
decision
Adjudicator: Brian Cook
Indexed as: Shakhnazarov v. George Brown College
APPEARANCES BY / wRITTEN SUBMISSIONS
Bakhtier Shakhnazarov, Applicant ) Self-represented
George Brown College, Respondent ) Leola Pon, Counsel,
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on October 25, 2010. At that time the applicant alleged that he experienced discrimination because of age while attending George Brown College as a student in an English as a Second Language (ESL) program and that he also experienced reprisal.
2On February 2, 2011, the Tribunal issued a Case Assessment Direction directing that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure.
3On April 13, 2011, the applicant submitted a Request for Order During Proceedings, asking that the Application be amended to include place of origin as a ground of alleged discrimination.
4The summary hearing was held by telephone conference call on September 16, 2011. The applicant participated. Dale Hall, who is the respondent’s Human Rights Advisor, participated and the respondent was represented by Leola Pon, counsel.
Issues
5The conference call hearing dealt with two issues:
Should the Application be amended to include the ground of place of origin?
Is there no reasonable prospect that the Application will succeed?
Background
6The applicant explained that he came to Canada from Uzbekistan. In Uzbekistan he was a lawyer with a particular interest in human rights. He was a television journalist, also in the area of human rights, and was required to leave Uzbekistan because of his advocacy.
7The applicant enrolled in an ESL program at George Brown College. The applicant started at level 5 of the program. Each level consists of an eight week block of classes. The classes are mostly taught by contract sessional teachers.
8The applicant had a good experience in the program in levels 5, 6 and 7. However, he says that he had a bad experience in level 8. There were approximately 30 students in the class, which was a higher number than he had experienced in the lower level classes. He was concerned about this as were others in the class.
9The applicant was involved in composing a letter to the College administration complaining about the size of the class. The request for a smaller class was denied. The applicant and other class members also had some concerns about the teacher.
10In the Application, the applicant indicates that the teacher’s attitude towards him changed as a result of the letter about the class size and also because she resented his pointing out errors that she made during class and with respect to marking course work. He also indicates that she humiliated him regarding bathroom breaks that were required because of a medical condition.
11The applicant’s complaints about the class size and about the teacher were reviewed by the College’s administration, up to the Office of the President. The College determined that the applicant had concerns about the teacher but that the teacher also had concerns about the applicant related to his alleged aggressive behaviour. The applicant denies that he was aggressive. The respondent asserts that the applicant never raised any human rights concerns until he filed the Application with this Tribunal. The applicant does not dispute this.
12The applicant successfully completed the level 8 program and went on to take a final level 9 program. However, he contends that he experienced a lack of confidence as a result of his experience in the level 8 program. He also alleges that he missed the first week of the level 9 program because his name was initially removed from the program class list although he was added again when he complained. He believes that his name was removed in reprisal for his complaints.
13At the time that he took the level 8 course, the applicant was 46 years of age.
The Request to Amend the Application
14The Application that the applicant filed on October 25, 2010, alleged discrimination on the grounds of age and reprisal. The alleged discrimination occurred in September and October 2009 when the applicant was in the level 8 course.
15The applicant was asked why he did not indicate discrimination on the ground of place of origin when he filed the Application. He said that he experienced some technical difficulties when he tried to complete the online Application form. Question 5 of the Application requires applicants to put an “X” in the box beside each of the eighteen listed grounds that an applicant believes applies to the Application.
16The applicant indicated that he found it difficult to check more than one ground and explained that this is why the Application indicated only age. However, in fact, the applicant was able to mark an “X” in the box for age and also the box for reprisal or threat of reprisal, which is one of the eighteen grounds listed in Question 5. The applicant could not explain why it was possible to put an “X” in the box regarding reprisal but not in the box regarding place of origin. The applicant further indicated that because of the technical difficulties that he experienced, he printed a copy of the Application and completed some of the sections by hand. He did not explain why he did not add an “X” in the place of origin box while he was doing that.
17The Application includes a detailed narrative from the applicant about the events giving rise to the Application. It includes allegations relating to age. It does not include any indication of alleged discrimination or harassment because of place of origin.
18The applicant explained that the reason for this is that he thought that he could only provide information about the ground of discrimination or harassment noted in Question 5.
19The Request for Order During Proceedings in which the applicant asked to amend the Application to include allegations of discrimination or harassment because of place of origin sets out allegations that the level 8 teacher showed prejudice on the basis of place of origin in her dealings with two other students who were originally from Iran. The applicant suggests that the discrimination in relation to them arose because Iran is “known as an Islamic country”. This alleged discrimination affected him because Uzbekistan is “associated with Afghanistan” and because all of these countries are Islamic or have populations of Muslim people.
20The respondent noted that these allegations are new allegations that are not connected in any way with the allegations of discrimination or harassment on the basis of age. They were raised for the first time in the Request for Order During Proceedings that was filed in April 2011 long after September and October 2009, the time period to which they relate.
21Rule 1.7(c) of the Tribunal’s Rules of Procedure state that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.” In considering requests to amend Applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
22Section 34 of the Code provides as follows:
- (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.
23While s.34(1) of the Code applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments, s. 34 does set out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced (Khokher v. Intercon Security Limited, 2011 HRTO 1493).
24In this case, the Request to amend was filed approximately 1 ½ years after the incidents set out in the Request. The proposed amendments add new allegations that do not seem connected to the allegations that are made in the original Application. In these circumstances, in my view, the applicant’s request to add the new allegations should be considered in light of the prejudice to the respondent and the applicant’s explanation for why he filed the request six months after he filed his Application and approximately 1 ½ years after the alleged incidents..
25The applicant first submits that the delay only arose because of his inability to check the place of origin box when he initially filed the Application. I find that this argument is not persuasive because the applicant indicated that he printed a hard copy of the Application and completed some of the sections by hand. If the applicant could complete some of the sections by hand he could at the same time have checked the boxes for all the grounds that were relevant to his allegations, and the applicant has provided no reasonable explanation for not doing so.
26The applicant also suggested that although he has legal training his experience in Uzbekistan did not train him how to fill in a human rights Application in Ontario. On this point, he indicated that after completing his studies at George Brown College, he started a course to become a registered paralegal in Ontario. He was taking that course at the time he filed the Application. I cannot conclude that any difficulties the applicant may have experienced in completing the form that relate to his lack of experience in completing a human rights application in Ontario provide a good faith explanation for the delay in bringing forward allegations relating to place of origin.
27I further note that the Request for Order During Proceedings that was filed was only filed after the Tribunal issued the Case Assessment Direction that directed the summary hearing. The Case Assessment Direction identified the difficulties that the applicant might experience in proving discrimination on the grounds of age and reprisal.
28For the reasons set out above, the applicant’s request to amend his Application to include the new allegations of discrimination or harassment on the grounds of place of origin is denied.
Is there no reasonable prospect that the application will succeed?
29Rule 19A provides as follows:
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.
30In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal explained summary hearings as follows, at paras. 7-9:
A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.
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.
31The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights
32The applicant was asked what evidence he would be able to produce to prove that he did experience harassment or discrimination because of age.
33The applicant explained that he has no evidence of direct discrimination because of age. He was not subject to any comments that referred to his age in any discriminatory way. However, he said that mostly he could just feel that there was discrimination against him because of his age. The applicant noted that the students in the class were of varied ages but that most of them were younger people. He believes that the teacher of the level 8 program may have lacked experience in dealing with older students who should not be treated in the same way as young students who lack the life experience of older mature students.
34The applicant indicated that one of the students in the level 8 program was older than the applicant and that he was treated badly by the teacher too. For example, the teacher expressed doubt that this student would be able to successfully complete the program. The applicant has talked to this other student. The other student wrote a letter of complaint about the teacher but then decided not to send it. The applicant thinks that this other student might be willing to come as a witness and that he would describe his own experience of discrimination. However, he has not asked the other student if he would be prepared to testify. Also, it appears that the other student felt discrimination on grounds other than age. The applicant indicated that the other student was one of two students who were Iranian and that both of them experienced discrimination because of this although one was older than the applicant and the other was in his 20s.
35There does not seem to be any dispute that the applicant experienced a significant clash with the level 8 teacher. It is apparent that the applicant believes that he was treated unfairly as a result. The issue in a hearing at this Tribunal would not be limited to the question of whether the applicant was treated unfairly. To succeed on this Application the applicant would need to show that the alleged unfairness he experienced in the level 8 course was due at least in part to age.
36I find that there is no reasonable prospect that the applicant can prove discrimination on the basis of age. The applicant has pointed to nothing specific that suggests that there is any reason to believe that he was treated differently by the respondent because of age. At best, the applicant has his own feeling that he was treated unfairly because of age and the hope that maybe another student might testify about that student’s experience in the class; however, the applicant has not spoken with the other student about testifying in this proceeding. Moreover, based on the applicant’s explanation of the potential evidence of the other student it appears that he would not be able to provide any evidence of age discrimination although he might provide evidence that he too felt he was treated unfairly.
37I also find that there is no reasonable prospect that the applicant can prove reprisal within the meaning of the Code.
38Section 8 of the Code provides:
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
39Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason. The applicant does not dispute that he never raised any human rights concerns with the respondent until he filed the Application with this Tribunal. Accordingly, none of the allegations against the respondent, including the removal of the applicant’s name from the level 9 class list, can constitute reprisal under the Code.
40Accordingly, I find that this Application has no reasonable prospect of success.
ORDER
41The Application is dismissed.
Dated at Toronto, this 24th day of October, 2011.
‘Signed by”
Brian Cook
Vice-chair