Zohreh Soheil-Fakhaei v. Canadian Business College, 2011 HRTO 921

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zohreh Soheil-Fakhaei Applicants

-and-

Canadian Business College – Faculty of Dental Hygiene, Paul Sharma, Helen Wolda, Sangeeta Patodia, and Pooja Sarda Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 12, 2011 Citation: 2011 HRTO 921 Indexed as: Soheil-Fakhaei v. Canadian Business College

written submissions

Zohreh Soheil-Fakhaei, Applicant ) Shaikh Ali, Representative Canadian Business College, Respondent ) Syed Ali Mazher Jaffery, Representative Paul Sharma, Respondent ) Self-represented

1This Interim Decision is issued in order to address various matters that have arisen since the commencement of the hearing in this matter on January 28, 2011. As the parties are aware, the hearing is scheduled to continue and conclude on July 4 and 5, 2011.

New allegations

2At the hearing, during the course of my questioning of the applicant, the respondent Mr. Sharma raised an objection that certain allegations the applicant was raising in her evidence had not previously been disclosed. Rather than hearing submissions on that issue at that time, I advised Mr. Sharma that I would complete my questioning of the applicant and asked him to then raise all objections at one time regarding any new allegations he believed she was raising.

3On February 16, 2011, Mr. Sharma wrote to the Tribunal to formally raise his objection in writing. However, in this letter, while Mr. Sharma raised the objection that the applicant had raised new allegations that were not set out in any of her materials and that he was hearing for the first time, Mr. Sharma did not specify what specific new allegations he was saying the applicant had raised for the first time at the hearing.

4As a result, on February 17, 2011, the Tribunal sent a letter to the parties in which Mr. Sharma’s response was acknowledged, but in which it was stated that he needed to set out the specific allegations raised by the applicant that he submits are beyond the scope of the subject-matter of her complaint, and explain why he takes this position with regard to these specific allegations. Mr. Sharma was given until March 21, 2011 to do so. However, no further material was received from Mr. Sharma.

5I have reviewed my notes from the hearing, and I have recorded Mr. Sharma’s objection at the point in the applicant’s evidence where she testified that Mr. Sharma had asked her many times to have a meeting outside the school, saying “You can go out, we can have coffee together”. After Mr. Sharma had raised his objection and I had asked him to defer it until after I had completed my questioning of the applicant, the applicant continued in her evidence to state that Mr. Sharma had said, “Let’s go out and spend some time together – let’s be alone and spend some time together”. The applicant testified that this is the only thing she refused because she couldn’t do it. As Mr. Sharma did raise an objection to this specific allegation at the hearing and in the presence of the applicant and her representative, I am prepared to consider it in this Interim Decision.

6I do not have a note of Mr. Sharma raising any other specific objection at the hearing on the basis that the applicant was raising a new allegation that he was hearing for the first time, and Mr. Sharma has not provided any further specifics in support of his written objection.

7I have reviewed the complaint originally filed with the Commission and the material filed by the applicant in support of her Application, and do not see any reference to an allegation that Mr. Sharma invited the applicant out for coffee, or to go out and spend some time together, or to go out and be alone and spend some time together.

8This is a transitional application filed under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which means that the complaint originally was filed with the Commission under the previous human rights system, and then was transferred over to this Tribunal under the current system. Under s. 53(5) of the Code, a transitional application must be based on the subject-matter of the complaint as filed with the Commission. The Tribunal generally will not allow an applicant to raise a new allegation that was not set out in the complaint as filed with the Commission. See DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281.

9In her responding submissions, the applicant specifically references her allegation that Mr. Sharma invited her to go out for coffee. She first explains the absence of this allegation from her complaint by stating that the complaint form used by the Commission at that time restricted complainants to two pages to set out their allegations. However, in this regard, I note that the applicant actually used 11 pages to set out her allegations in the complaint filed with the Commission, yet still did not make any reference to the allegation that she was asked by Mr. Sharma to “go out” with him.

10The applicant next states that it was more important for her to set out her allegations about things which actually happened, rather than things that Mr. Sharma just talked about but with which she didn’t comply. There are many allegations set out in the 11 page complaint filed with the Commission, not all of which describe things that actually happened (for example, that certain respondents were “swinging sword around my neck”). If an allegation is being relied upon as substantiating a violation of the Code, it needs to have some basis or foundation in the complaint. No such basis or foundation for an allegation that Mr. Sharma invited the applicant to “go out” with him is set out in the complaint. I find this particularly troubling, as the applicant expressly alleges sexual solicitation by Mr. Sharma and that he was making “sexual advances” towards her, but fails to make any mention that he allegedly asked to her “go out” with him.

11The applicant next states that if she had to write every word that came out of Mr. Sharma’s mouth, her complaint would have been over 400 pages long. Complainants are not required or expected to set out literally every word that a respondent has ever said to them. However, a complainant is required to set out the comments or conduct of a respondent upon which she or he relies to allege a violation of the Code. Raising an allegation that Mr. Sharma asked her to “go out” with him is something that could have been stated very briefly in the complaint. But it was not.

12Finally, the applicant makes reference to certain points in her complaint where she has simply set out dotted lines, which she states is an invitation to “read between the lines”. Whether or not that was the applicant’s intention, I do not see how this applies to her allegation about being asked to “go out” by Mr. Sharma. There is nothing to “read between the lines” in relation to such an allegation. In any event, as a matter of fundamental fairness to a respondent, Mr. Sharma is entitled to know what allegations are being made against him and should not be left to “read between the lines” and guess what the applicant is alluding to.

13For all of these reasons, I find that the applicant’s allegation that Mr. Sharma asked her to “go out” with him is beyond the scope of the subject-matter of the complaint. Specifically, the applicant cannot rely on the following alleged comments by Mr. Sharma: “You can go out, we can have coffee together” and “Let’s go out and spend some time together – let’s be alone and spend some time together”. I will not consider her evidence in this regard, nor does Mr. Sharma need to respond to these allegations.

Documents

14Various parties have submitted further documents upon which they intend to rely. In the Tribunal’s February 17, 2011 letter, any party objecting to the filing of these documents was to have made such objection in writing by April 11, 2011. As no objection has been received, the documents submitted have been accepted for filing and will be marked as exhibits when the hearing resumes on July 4, 2011.

Additional matters

15Once again, the applicant’s representative and the representative for the College have engaged in some back and forth correspondence that has also been submitted to the Tribunal. This is not helpful and I ask once again that the parties refrain from engaging in such argument in correspondence to the Tribunal.

16There are some issues raised in this correspondence that I will briefly address. In Mr. Jaffrey’s email correspondence of February 18, 2011, he raised an issue about Maria Duduia being allowed to testify as a witness on January 28, 2011. I heard submissions from the parties on that day about Ms. Duduia’s proposed testimony, and made a ruling about the evidence from her that I would allow. Her evidence now has been heard. No purpose is served in re-visiting this issue at this time.

17Mr. Jaffrey also in this correspondence asks whether it would be helpful for the College to bring the Superintendent from the Ministry of Training, Colleges and Universities responsible for private career colleges to testify about the powers of the Superintendent or whether the College can rely on the actual Act and/or the previous Act. I fail to see how the Superintendent’s evidence would be relevant to the alleged violations of the Code which have been raised by the applicant in this proceeding, and so I don’t believe that this person’s evidence would be helpful. With regard to legislation, any party can rely on legislation in their submissions, if this is relevant to the issues before me for adjudication.

18Mr. Jaffrey also raises a question about documents which already have been tendered as exhibits in this proceeding. Those documents are already in evidence and do not need to be reproduced.

19Mr. Jaffrey asks whether the College can bring its own court reporter to the hearing. That is permissible, but the College would be required to bear the cost of having the court reporter present, and also would need to produce copies of the transcript for the Tribunal and all other parties at its own cost. If the College intends to do so, it shall advise the Tribunal and the other parties at least 20 days prior to the re-commencement of the hearing on July 4, 2011.

20Mr. Jaffrey also asks whether the College is entitled to bring a “legal observer” to the hearing. If by “legal observer”, Mr. Jaffrey means a person who will simply attend but not play any active role at the hearing, then hearings are open to the public and anyone is free to attend as long as they do not disrupt the proceeding. An observer, however, is not permitted to record the proceedings without permission. If Mr. Jaffrey intends to retain counsel to represent the College in this proceeding, then any such counsel should advise the Tribunal as soon as possible that they are acting for the College.

21In email correspondence dated March 28, 2011, the applicant’s representative makes reference to a “scantran” (a document which records answers from an academic test or examination to be read by a computer) which was submitted by the College at the last day of hearing, and makes reference to having this document reviewed by an “expert”. It is not the Tribunal’s role to engage in retaining or contacting “experts” to review documents which have been submitted and about which evidence already has been heard. Nor am I of the view that such evidence would be helpful. I already have heard evidence from Ms. Hucson (the applicant’s instructor for Community Health who appeared as a witness on the last day of hearing). Further, the applicant herself has acknowledged that if I heard from Ms. Hucson that she was the one who made the decision to fail the applicant in Community Health and on the supplementary exam and that she was not influenced by Mr. Sharma (which was the evidence given by Ms. Hucson), and if I accept that evidence, then there is no issue of discrimination in relation to the marks she received in Community Health or on the supplementary examination. In light of this evidence, I do not believe that having an expert testify regarding a review of the scantran documents would be of assistance to me in making the only determination which is within my jurisdiction, namely whether the applicant experienced discrimination on one of the grounds she alleges under the Code.

Dated at Toronto, this 12th day of May, 2011.

”signed by”____

Mark Hart Vice-Chair