Mohammed Karzi v. Sara Jones and David Findlay, 2011 HRTO 1957

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammed Karzi

Applicant

-and-

Sara Jones and David Findlay

Respondents

Decision

Adjudicator: Douglas Sanderson

Date: October 31, 2011

Citation: 2011 HRTO 1957

Indexed As: Karzi v. Jones

Appearances

Mohammed Karzi, Applicant ) Self-Represented

Sarah Jones and ) Andrew Pinto, Counsel Robert Findlay, Respondents )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination because of race, ancestry, place of origin and ethnic origin and disability in connection with goods, services and facilities.

2By Case Assessment Direction (“CAD”) dated July 25, 2011, the Tribunal granted the respondents’ request for a Summary Hearing. The Summary Hearing was held by teleconference on September 19, 2011.

Background

3The applicant was involved in a motor vehicle accident on April 19, 2003, in which he sustained significant injuries. The applicant retained Findlay Attorneys to represent him in a claim for compensation for his injuries. The respondent Robert Findlay was the applicant’s lawyer in the litigation of this claim and Sarah Jones was a kinesiologist and law clerk employed by Findlay Attorneys who assisted with the applicant’s claim. The matter proceeded to mediation on April 24, 2009, and the parties entered in a full and final settlement.

The Application

4The mediation session is the focus of the Application. The applicant alleged that during the mediation Ms. Jones urged him to accept a settlement offer in the following manner:

Mohammed you better take this money. If you go to the jury, the jury may be all white people. They may give you zero because there is fighting going on in Afghanistan and Canadian troops are dying there. So you’ll get nothing from them.

Consequently, the applicant believed Ms. Jones discriminated against him because of race, ancestry, place of origin and ethnic origin

5The other allegations set out in the Application were directed against the mediator conducting the session, Jonathan Fidler. The Application initially named Mr. Fidler as a respondent, but in an Interim Decision, 2010 HRTO 982, the Tribunal dismissed the Application against Mr. Fidler on the basis of judicial immunity.

Summary Hearings

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the 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.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Applicant’s Submissions

8The applicant provided additional particulars in response to the Request for Summary Hearing and during the Summary Hearing itself.

9The applicant alleged that during a telephone conversation on April 18, 2009, Mr. Findlay asked him how his parents died and asked him if he had attended the Taliban school in Pakistan. The applicant replied that he not gone to that school, but the respondent said that he, the applicant, had in fact attended the school and had proof to that effect. The applicant stated that about 20 minutes later, Mr. Findlay arrived at the applicant’s house and took him to Shoppers’ Drug Mart to purchase medication for the applicant. After departing the pharmacy, Mr. Findlay took the applicant for a drive to show him the neighbourhood he grew up in. Mr. Findlay allegedly pointed out a house where he said a high school friend once lived and this friend was now a U.S. Marine and “no one can fuck with him”. The applicant submitted that Mr. Findlay said this to him to intimidate him and the implied message was that he “better shut up or his Marine friend will hurt him”.

10The applicant stated that during the mediation, Mr. Findlay kept telling his uncle that “those Talibans are evil, those Talibans are evil” and had also said this to the applicant a couple of times a few weeks before the mediation. The applicant submitted that these statements meant that Mr. Findlay believed the applicant was a Taliban and evil.

11During the mediation, the mediator, Mr. Fidler, did several things the applicant found objectionable. Mr. Fidler asked the applicant’s uncle and brother, who accompanied the applicant that day, what kind of work they did. The applicant’s uncle replied that he worked at Pizza Pizza and his brother said that he worked as a car wash operator. On several occasions when leaving the room, Mr. Fidler said to Mr. Findlay “Let’s get his this done fast so we can have a free slice of pizza and a free car wash”, which humiliated his uncle and brother. When the applicant stated an offer was insufficient, Mr. Fidler slammed his hand on the table and yelled at him “Mohammed just remember where you are coming from. Don’t forget that.” The applicant interpreted this to mean that he came from a poor country. Mr. Fidler also allegedly informed the applicant that if he did not sign the settlement documents he would have to fire Mr. Findlay. The applicant asserts Mr. Findlay did not object to this improper behaviour. Rather, Mr. Findlay was sweating and shaking and promised the applicant he would get him a drivers licence (which is apparently not possible because of the applicant’s injuries), buy him a car and to drive him to shopping, apparently to induce the applicant to settle. The applicant submitted that Mr. Findlay discriminated against him because of greed.

12The parties reached a settlement during the mediation session, but for an amount significantly less than the applicant understood his case might be worth if he went to trial. The applicant stated that following the mediation session he spoke to a friend and the Human Rights Legal Support Centre both of whom advised him to reject the settlement. He therefore called the respondents’ firm to advise them of his decision to reject the settlement and go to court. According to the applicant, Mr. Findlay advised the applicant he would have to fire him and pay his fee if the applicant wished to pursue that course of action. Mr. Findlay further advised that the Insurance Company could “come after him” as well. Although apparently displeased with the settlement, the applicant ultimately executed the settlement documents and filed an Application at the Tribunal.

Analysis

13For the reasons that follow, I find the Application has no reasonable prospect of success.

14I have assumed the applicant’s allegations to be true for the purposes of the Summary Hearing. Even assuming them to be true, the allegations against Mr. Findlay do no amount to a violation of the Code. The Application itself contains no allegations against Mr. Findlay at all. In his submissions at the Summary Hearing, the applicant alleged that he was subject to inappropriate and discriminatory behaviour from the mediator. Assuming the allegations to be true, it may be that the mediator at times acted in a rude and insensitive manner towards the applicant’s relatives and dealt with the applicant in a forceful manner during the session. While possibly inappropriate, none of these allegations have any connection to a prohibited ground of discrimination and they are not attributed to the Mr. Findlay. The applicant interprets the mediator’s alleged direction to the effect that the applicant should remember where he was coming from in assessing a settlement offer to be related to his place of origin. In my view, the alleged statement is not obviously discriminatory and in any event Mr. Findlay was not responsible for it. The applicant’s concern was that Mr. Findlay did not object to the mediator’s conduct. However, failure to object to discrimination is not a violation of the Code.

15The applicant interpreted Mr. Findlay’s alleged comments regarding his high school friend who joined the Marines as a threat “to shut up”, i.e., to agree with Mr. Findlay or face violence. There is nothing in the factual context described by the applicant that suggests Mr. Findlay had any reason to coerce the applicant or that his reference to his friend could reasonably be construed as a threat. More significantly, there is also nothing in the alleged statement or the applicant’s interpretation of it connected to a prohibited ground of discrimination under the Code.

16In my view, the allegations that Mr. Findlay accused him of attending the Taliban school in Pakistan and stated “those Taliban are evil” to the applicant and his uncle, assuming they are true, do not amount to a violation of the Code. The evidence described by the applicant does not indicate that Mr. Findlay believed the applicant was a member of the Taliban and, even if he did, the applicant offered no evidence of differential treatment as a result of that belief. The mediation ended in a settlement, which, although not insignificant, was ultimately disappointing to the applicant. There is no evidence that the applicant accepted this settlement because of any discriminatory statement or advice from Mr. Findlay. Similarly, the applicant provided no evidence that Mr. Findlay’s refusal to facilitate the applicant’s desire to resile from the settlement was connected to a prohibited ground of discrimination.

17The statement attributed to Ms. Jones that an all-white jury might award the applicant no damages because Canadian soldiers were fighting and dying in Afghanistan is without question related to the applicant’s race, place of origin and ethnic origin. The question is whether the statement, assuming the respondent made it, could be considered discriminatory. In my view, it could not. The applicant submitted that his place of origin and ethnicity were irrelevant to the merits of his claim for damages and his case, had it gone to trial, would have been determined bases solely on the facts relating the motor vehicle accident and his injuries. I agree that prohibited grounds of discrimination ideally should not be considered by a jury in determining liability or damages. However, the ideal of racial and ethnic harmony is far from achieved in our society. The respondents were the applicant’s legal advisors regarding the litigation of his claim and were required to discuss with him the possibilities and vagaries of a jury trial, including the potential biases of the jurors. The statement attributed to Ms. Jones does not suggest that she considered the applicant or his claim unworthy because he is Afghani, which might call for a different result. In these circumstances, there is no reasonable prospect that the applicant can prove, on a balance of probabilities that the statement in question amounted to a violation of the Code.

18The applicant was clearly unhappy about the outcome of his legal action, which he attributed to the conduct of his legal advisors. The Tribunal, however, does not have jurisdiction over the conduct of legal advisors, absent some evidence of a violation of the Code. The applicant has not offered any such evidence; therefore, the Application has no reasonable prospect of success.

19The application is dismissed.