HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nadeem Ebrahimi by his next friend Najeem Ebrahimi
Applicant
-and-
Durham District School Board and J. Clarke Richardson High School
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Ebrahimi v. Durham District School Board
appearances BY
Nadeem Ebrahimi, Applicant ) Najeem Ebrahimi, Representative
Durham District School Board and J. Clarke ) Kathryn Bird, Counsel
Richardson High School, Respondents )
INTRODUCTION
1The purpose of this Decision is (1) to decide whether the applicant’s allegations of discrimination should be dismissed on the basis that there is no reasonable prospect that they will succeed, and (2) to decide on the merits whether the respondents subjected the applicant to a threat of reprisal for claiming his rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
BACKGROUND
2The applicant self identifies as a Canadian citizen of Afghani origin. In the 2008-2009 school year, he was a grade 12 student at J. Clarke Richardson High School (“J. Clarke Richardson”), which is part of the Durham District School Board. He had applied and received a conditional offer to attend a university the following year.
3On February 24, 2009, the applicant and two friends returned to school late after lunch. A Vice-Principal of the school questioned the applicant about his tardiness, and discovered that he had marijuana and drug paraphernalia in his pocket, and a BB gun tucked into his waist under his clothing. The gun had writing on its side which stated: “This is Not a Toy”.
4The school called the police and the applicant was arrested and charged with carrying a concealed weapon, possession of a controlled substance, and possession of a weapon dangerous to public peace. The applicant was released from custody with a number of conditions, including abstaining from communication or association with his two friends, and remaining 200 meters away from the school unless approved otherwise in writing by the Principal.
5On the same day, the applicant’s brothers spoke with the applicant’s two friends, and covertly videotaped their discussion. In the videotape, one of the applicant’s friend appeared to admit that he had given the applicant the marijuana and drug paraphernalia, and the other friend appeared to admit that he had given the applicant the BB gun.
6On February 25, 2009, the school issued a 20-day suspension to the applicant. On February 27, 2009, the applicant, one of his brothers, and his father met with two Vice-Principals of the school, and produced the videotape. The school subsequently informed the police that the applicant’s friend had admitted giving the BB gun to the applicant, and issued his friend a 20-day suspension, as well. The police did not charge the applicant’s friend with any weapons-related offences, or impose a condition on him to stay away from the school.
7In March 2009, the applicant and his friend attended the same long-term suspension program in a different school, but were only able to attend on alternate days because of the release condition that prohibited the applicant from communicating or associating with his friend.
8Following the expiry of the 20-day suspensions, J. Clarke Richardson allowed the applicant’s friend to return to the school as a student, but did not allow the applicant to return because of the release condition that prohibited him from being within 200 meters of the school.
9In April and the first half of May 2009, the applicant did not attend a school, and J. Clarke Richardson assigned school work to him at home. During the same time period, the applicant’s family and the Crown Attorney’s office both asked the respondents whether they would support removing the release conditions imposed on the applicant. The respondents refused to support removing the conditions.
10On May 6, 2009, Najeem Ebrahimi, who is the applicant’s brother, and Richard Kennelly, who was the Administrative Officer for Ajax/Pickering schools at the Durham District School Board, had an argument over the telephone about the respondents’ refusal to allow the applicant to return to J. Clarke Richardson.
11On May 13, 2009, Mr. Kennelly informed the applicant’s brother that the applicant could attend another high school within the Board. The applicant began attending the other school on May 19, 2009.
12On May 29, 2009, the applicant attempted to attend the J. Clarke Richardson prom for graduating grade 12 students. A Vice Principal of the school saw the applicant and refused to allow him to attend.
13On June 4, 2009, the applicant filed an Application with this Tribunal under s. 34 of Code, which alleged that the respondents discriminated against him with respect to services because of his race, colour, place of origin, citizenship, ethnic origin, and family status, and subjected him to reprisal.
14Specifically, he alleged that the respondents discriminated against him by refusing to allow him to return to J. Clarke Richardson after he completed his 20-day suspension, refusing to support the removal of his release conditions, failing to provide him with an adequate alternative education, and refusing to allow him to attend his prom.
15In section C6 of the Application (“Explain why you believe you were discriminated against because of your race, colour… place of origin, citizenship, or ethnic origin.”), the applicant wrote: “I believe I was discriminated against because there was another student in the exact same situation and he was allowed to be back in school but not me.”
16In section C22 of the Application (“Explain why you believe you were discriminated against based on your family… status.”), the applicant wrote: “My father cannot speak English fluently and I believe that because of this reason the Vice Principal is taking advantage of him.”
17The applicant also alleged the respondents subjected him to a threat of reprisal for claiming his rights under the Code during the May 6, 2009 telephone discussion between his brother and Mr. Kennelly. Specifically, he stated that his brother alleged that the respondents were discriminating against the applicant, and Mr. Kennelly responded that the word “discrimination” should not be thrown around and that he could draw a line and prevent the applicant from ever returning to school.
18On July 28, 2009, the respondents filed a Response, which denied the allegations of discrimination and reprisal, and stated that the difficult situation that the applicant found himself in was wholly the result of his decision to possess marijuana, drug paraphernalia and, most seriously, a fully functional BB gun on school property, and to be under the influence of marijuana on school property. They also stated that the Application should be dismissed because it fails to disclose a prima facie breach of the Code.
19Specifically, the respondents stated that the applicant was not allowed to return to J. Clarke Richardson after he completed his 20-day suspension because, unlike his friend, there was a release condition imposed on him that prohibited him from being within 200 meters of the school. They stated that the fact that the police did not charge the applicant’s friend with a weapons-related offence and impose a similar release condition on him was not within the control of the respondents. They also stated that there could not have been differential treatment based on Code grounds because the applicant and his friend are of the same race, colour and ethnic background.
20The respondents also stated that they did not consent to the removal of the applicant’s release conditions because their consistent practice is not to intervene in criminal proceedings involving a student.
21The respondents also stated that they made substantial efforts to provide the applicant with a suitable alternative education, but that their efforts were hampered by the applicant’s lack of cooperation (he insisted on returning to J. Clarke Richardson rather than focusing on his alternative education plan), the release conditions imposed on the applicant (he was only able to attend the long-term suspension program on alternate days because of the condition that prohibited him from communicating or associating with his friend), and the refusal of teachers to provide one-on-one home instruction to the applicant (the teachers did not want be alone with a student who had brought a gun to school).
22The respondents further stated that they refused to allow the applicant to attend his school prom because of the release condition that prohibited him from being at the school.
23With respect to the applicant’s allegation that Mr. Kennelly subjected him to a threat of reprisal, the respondents acknowledged that the applicant’s brother and Mr. Kennelly had a telephone discussion on May 6, 2009, but stated that Mr. Kennelly merely denied the applicant’s brother’s repeated requests to allow the applicant to return to J. Clarke Richardson.
24The applicant filed a Reply on August 13, 2009, which stated that the Response had a number of contradictions and inaccurate statements. Specifically, he stated that he took a drug screening test shortly after the incident, which showed that there were no drugs in his system and he was therefore not under the influence of marijuana. He also stated that the BB gun had no air tank and pellets and was therefore not functional.
25The applicant also denied that the release conditions precluded him from returning to J. Clarke Richardson. He stated that his release conditions allowed him to be at J. Clarke Richardson with the Principal’s written approval, and that he had, in fact, attended meetings at the school.
26The applicant also stated that he fully cooperated with the alternative education plan, but the respondents set him up to fail. He stated that the respondents should have assigned him and his friend to long term suspension programs in different schools, so that he would have been able to attend every day rather than on alternate days. He also stated that he completed all the school work that the respondents assigned to him at home, and that if the respondents knew that teachers from J. Clarke Richardson were unwilling to provide home instruction to him, they should have transferred him to a different high school immediately rather than letting him languish for a month.
27The applicant also denied that he and his friend are of the same race, colour and ethnic background, and stated that the respondents’ assumption that they are of the same race, colour and ethnic background was based on stereotypes.
28Prior to the hearing, both parties complied with the Tribunal’s Rules of Procedure on disclosure of documents and witnesses. The applicant indicated that he intended to call several witnesses, including one witness who allegedly heard Mr. Kennelly refer to Pakistani students as “Pakis” in a separate incident that occurred prior to the incidents at issue in the case at hand.
29The hearing of the merits of the Application was scheduled to begin on March 23, 2011. At the outset of the hearing, I asked the parties to provide oral submissions on whether the applicant’s allegations of discrimination should be dismissed on the basis that there is no reasonable prospect that they will succeed.
30After the parties made oral submissions with respect to this issue, I then heard evidence on the merits of the applicant’s allegation that the respondents subjected him to a threat of reprisal for claiming his rights under the Code. Specifically, I heard the oral evidence of the applicant’s brother and Mr. Kennelly.
31Following the hearing, the parties filed written submissions on both of the above issues.
ANALYSIS
Should the applicant’s allegations of discrimination be dismissed on the basis that there is no reasonable prospect that they will succeed?
32Rule 19A of the Tribunal’s Rules provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 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.
33The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
34Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and do not involve calling witnesses. Summary hearings typically involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application should be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard as a preliminary issue at the outset of a hearing of the merits of the Application, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 18.
35Before hearing the parties’ submissions, I asked the applicant to identify his friend by race and related grounds. In response, he stated that his friend is of Pakistani origin. The respondents stated that they were unable to confirm whether or not the applicant’s friend is of Pakistani origin, and maintained that their impression at the time of the alleged incidents was that, similar to the applicant, he was of Afghani origin.
36In his submissions, the applicant stated that his allegations of discrimination have a reasonable prospect of success because there is evidence that the respondents subjected him to racial profiling, treated him differently because of his family status, took disproportionate actions against him, and subjected him to a number of other disadvantages. He also stated that the respondents do not have a plausible, non-discriminatory reason for their actions.
37Specifically, the applicant stated that the respondents allowed his friend to return to J. Clarke Richardson after the completion of his suspension, but did not allow him to return, because the respondents prefer Pakistani students over Afghani students. In support of this allegation, the applicant stated that he will present evidence that his friend has darker skin than him, and that his friend was allowed to return to the school even though he had a criminal record.
38I asked the applicant how he could reconcile this submission with his earlier indication that he would be calling a witness who would testify that Mr. Kennelly referred to Pakistani students as “Pakis”. In response, he stated that the respondents also discriminate against Pakistani students, but that they prefer them over Afghani students.
39The applicant also stated that the respondents’ actions correspond to the phenomenon of racial profiling. Specifically, he stated that the respondents perceived him as a threat and lacking in credibility because of stereotypes about Afghanis. In support of this allegation, he stated that he will present evidence that, unlike his friend, he has no criminal record, yet the respondents still perceived him as a greater threat; that the respondents assumed the BB gun was fully functional when, in fact, it was not; and that teachers at J. Clarke Richardson perceived him as a threat when, in fact, he was not.
40With respect to his allegation of discrimination based on family status, the applicant stated that he will present evidence that his father does not fully understand English, and that the respondents provided false facts to him about the applicant that caused problems within the family.
41The applicant also stated that the respondents’ disproportionate actions against him were indicators of discrimination. In support of this allegation, the applicant stated that he will present evidence that the respondents disproportionately disciplined him by informally extending his 20-day suspension without expelling him, and by refusing to consent to the removal of his release conditions, which would have allowed him to return to J. Clarke Richardson.
42The applicant further stated that the other disadvantages that the respondents imposed on him were additional indicators of discrimination. Specifically, he stated that he will present evidence that he was excluded from his prom, and that his low marks, which were the result of the substandard alternative education that he received, resulted in the withdrawal of a conditional offer of acceptance to a university.
43In their submissions, the respondents stated that the applicant’s allegations of discrimination have no reasonable prospect of success because there is no nexus between the respondents’ alleged actions and any of the Code grounds listed in the Application. They stated that, at best, his allegations disclose a case of unfair treatment, and that it is not enough to make bald statements that the respondents conspired to discriminate against Afghani students, and that they prefer Pakistani students over Afghani students.
44In my view, the applicant’s allegations of discrimination have no reasonable prospect of success because there is no reasonable prospect that evidence that he has or that is reasonably available to him can show a link between the respondents’ alleged actions and the prohibited Code grounds.
45In assessing allegations of racial discrimination, this Tribunal has been guided by the principles set out by the British Columbia Human Rights Tribunal in Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 at para. 482:
(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.
46In assessing allegations of discrimination based on family status, the Tribunal applies the definition of family status found in s. 10 of the Code, which defines it as “being in a parent and child relationship”.
47I will now turn to my assessment of the applicant’s allegations of discrimination in relation to the reasonable prospect of success test. To start out with, it is undisputed that the applicant was discovered to be in possession of marijuana, drug paraphernalia and a BB gun on school property, and that being in possession of a weapon is one of the most serious offences that a student can commit within the public school system. It is also undisputed that the police, not the respondents, arrested and charged him with serious criminal offences and imposed restrictive release conditions on him.
48In addition, the applicant’s pre-submission pleadings disclosed little or no nexus between the respondents’ alleged actions and any of the prohibited Code grounds. His allegation that the respondents discriminated against him because of his race and related grounds was limited to a bare statement that his friend, whom he did not identify by race and related grounds, was allowed to return to J. Clarke Richardson, but he was not. Similarly his allegation that the respondents discriminated against him because of his family status was limited to a bare statement that a Vice Principal took advantage of his father because he cannot speak English fluently.
49Instead, the applicant’s allegations focused on showing that his alleged offences were less serious than the respondents portrayed them to be, and that the respondents acted unreasonably and punished him disproportionately.
50Furthermore, the applicant’s oral and written submissions attempted to disclose a link between the respondents’ alleged actions and the prohibited Code grounds, but either did not make sense or made minimal reference to supporting evidence that the applicant has or that is reasonably available to him to establish such a link.
51Specifically, the applicant illogically alleged that the respondents treated his friend better than him because his friend had darker skin than him. This is not the way racism usually works in Canada, and while I acknowledge racial discrimination can manifest itself in complex and unusual ways, the applicant did not explain in any way how this occurred in his case.
52I also found the applicant’s attempt to reconcile his intention to call a witness who would allege that Mr. Kennelly called Pakistani students “Pakis” with his later allegation that the respondents preferred Pakistani students over Afghani students nonsensical. The applicant provided no explanation why the respondents would allow his friend, who is of Pakistani origin, and had also been in possession of the BB gun on school property, to return to J. Clarke Richardson, if they also held racist views about Pakistani students.
53The applicant also alleged that the respondents hold a wide range of discriminatory stereotypes about Afghanis, that the respondents prefer Pakistani student over Afghani students, and that the respondent provided false facts about him to his father who does not fully understand English, but he provided little explanation how evidence that he has or that is reasonably available to him can show a link between the respondents’ alleged actions and the prohibited Code grounds.
54At best, the applicant established that there is a reasonable prospect that he will be able to prove that some of the respondent’s actions were unreasonable or disproportionate. However, the Code is not a catch-all, and merely identifying with one or more prohibited grounds under the Code, as the applicant has essentially done in the case at hand, will not suffice because everyone identifies with one or more Code grounds just by virtue of his or her humanity. See Leckie v. Hamilton-Wentworth District School Board, 2009 HRTO 668 at para. 38 and Sosoo v. Winners Merchants, 2010 HRTO 1367 at para. 71.
55For all the above reasons, the applicant’s allegations of discrimination are dismissed.
Did respondents subject the applicant to a threat of reprisal for claiming his rights under the Code?
56In Noble v. York University, 2010 HRTO 878, the Tribunal set out the applicable principles on reprisal at paras. 30-31 and 33-34:
The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.
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 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
57Many of the facts related to this allegation are not in dispute. On May 6, 2009, the applicant’s brother (Najeem Ebrahimi) and Mr. Kennelly had a telephone conversation about the applicant’s alternative education plan. The applicant’s brother was unhappy that the applicant was still at home, and requested that the applicant be allowed to return to J. Clarke Richardson. Mr. Kennelly denied his request.
58The applicant’s brother then told Mr. Kennelly that the applicant should have been allowed to return to J. Clarke Richardson because his friend had been allowed to return. In response, Mr. Kennelly told the applicant’s brother that the applicant’s friend was allowed to return because, unlike the applicant, there was no release condition prohibiting him from being at the school.
59The applicant’s brother then told Mr. Kennelly that treating two students in the same situation differently was discrimination. There is no evidence that the applicant’s brother linked this allegation of discrimination to a Code ground. In his testimony, Mr. Kennelly denied that the applicant’s brother made any such link, and he stated that he did not understand the applicant’s brother’s allegation to be related to a Code ground. In cross-examination, the applicant’s brother admitted that he could not recall linking the allegation to a Code ground.
60The factual dispute between the parties relates to what Mr. Kennelly allegedly said in response. The applicant’s brother testified that Mr. Kennelly told him not to throw the word “discrimination” around, and that he could draw a line to prevent the applicant from ever returning to school. In his testimony, Mr. Kennelly admitted that he raised his voice and told the applicant’s brother not to throw the word “discrimination” around, but denied he threatened to draw a line and prevent the applicant from ever returning to school.
61A few days after this conversation, Mr. Kennelly informed the applicant’s brother that the applicant could attend another high school within the Board. The applicant began attending the other school on May 19, 2009.
62In my view, the applicant did not establish on a balance of probabilities that Mr. Kennelly subjected him to a threat of reprisal for claiming his rights under the Code. First, the applicant’s brother and Mr. Kennelly were the only two people who were privy to their conversation, and they both provided straightforward testimony that withstood cross-examination. In these circumstances, I was unable to determine who was telling the truth, and whose evidence was more credible.
63Second, even if Mr. Kennelly made such a threat, the applicant did not establish that his brother was claiming, on his behalf, his rights under the Code. Specifically, the applicant’s brother admitted that he cannot recall linking his discrimination allegation to a Code ground, and I accept Mr. Kennelly’s evidence that he did not understand the applicant’s brother’s allegation to be related to a Code ground. Flowing from that, I also cannot infer that Mr. Kennelly intended to threaten a reprisal against the applicant because his brother claimed his rights under the Code.
64For the above reasons, the applicant’s allegation that the respondents subjected him to a threat of reprisal for claiming his rights under the Code is dismissed.
ORDER
65The Application is dismissed.
Dated at Toronto, this 28th day of December, 2011.
“signed by”
Ken Bhattacharjee
Vice-chair