HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ridha Bin Slama
Applicant
-and-
Certified Management Accountants of Ontario
Respondent
DecisION
Adjudicator: David Muir
Indexed as: Bin Slama v. Certified Management Accountants of Ontario
1This is an Application filed on October 18, 2010 pursuant to section 34 of Part IV of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended, (the “Code”). In the Application the applicant alleges that his right to be free from discrimination in vocational associations has been infringed by the respondent on the basis of race, ethnic origin, place of origin, creed and reprisal. At the Tribunal’s initiative a summary hearing took place on Monday April 23, 2012 by telephone conference to consider whether some or all of the Application ought to be dismissed because it has no reasonable prospect of success or that some or all of the allegations are out of time. In addition to these issues the parties were directed in a Case Assessment Direction dated April 18, 2012 to address whether some or all of the Application ought to be dismissed pursuant to section 45.1 of the Code because the substance of some or all of the applicant’s allegations were appropriately dealt with in another proceeding.
2The Application is dismissed. I find that the allegations of the applicant which the Tribunal can consider are out of time and therefore the Tribunal has no jurisdiction to deal with this Application. Having come to this conclusion there is no need to deal with the other matters raised by the Tribunal or the parties.
3The applicant has had a long and troubled history with the respondent beginning in 2002 and ending with a decision of the Discipline Committee of the respondent in April 2010. The applicant was a student member of the CMA. As an internationally trained professional he was required to fulfill certain educational requirements in order to be certified by the respondent. The applicant’s difficulties began almost from the outset of his student membership in 2002. The narrative of the applicant is very detailed and includes references to many conversations and email communications. At times the applicant was in almost daily contact with officials of the respondent, followed by lengthy periods where there appears to be little or no contact and/or no issues of concern. The following is a brief summary of some of the key allegations:
a. The applicant alleges that he was misdirected to take the accelerated program offered by the CMA rather than courses offered by the University of Toronto.
b. The applicant alleges that he was not advised that he could take these courses in French.
c. The applicant alleges that over time he became suspicious that the use of multiple choice questions in CMA examinations was intended to make it difficult for students whose first language was not English.
d. The applicant alleges that in December 2004 he was deliberately given the wrong address for an examination re-write.
e. The applicant alleges that when he rewrote an examination in December 2004 the invigilator yelled at him to stop writing and she opened his examination paper.
f. In the next stage of the certification program the applicant was required to write the CMA Entrance Examination. The applicant failed the first examination in October 2005. The applicant alleges that he was not provided with information necessary to be successful in the first examination.
g. The applicant alleges that he and the other students in an Exam Preparation Program were told by the instructor that he had submitted materials to the respondent in a timely way and was disappointed that they had not received the materials in a timely way.
h. The applicant failed a further examination in mid to late 2006. He asked to review his examination paper. The respondent offered to conduct an audit of the examination.
i. The results of the audit were received by the applicant in October 2006. The applicant requested and was offered the possibility of meeting with a third party to assist him with understanding why the applicant had failed.
j. In October 2007 the applicant requested a meeting with the newly installed President of the CMA. The request was declined and the applicant was advised, that “Since we are not able to meet your expectations, you should consider another accounting program”. The applicant responded by asking for a refund of all of his fees paid to date. The respondent responded that it was prepared to refund the applicant’s fees provided he resigned as a student member and undertook not to contact the respondent further.
k. On November 11, 2007 the applicant declined the offer and cautioned the respondent about stereotyping.
l. The applicant passed the entrance examinations and enrolled in a Strategic Leadership Program offered by the respondent. He alleges that when he attempted to communicate with the President of the respondent about the program, he did not respond so he contacted the Chair of the Board of Governors of the respondent by telephone and email in which he raised many of the issues set out above.
m. The applicant alleges that in January 2008 the President of the respondent forwarded the applicant’s email to J.J. an employee of the respondent who the applicant had complained about.
n. The applicant alleges that he learned that a student in the SLP could ask for a review of a failed course paper, but that the President could have told him this earlier.
o. The applicant alleges that they were told that the examinations could be written electronically but that later students were advised by email in July 2008 that they would have to do the examination in handwriting. The applicant sent two emails about this issue and at first received a positive reply to his complaints about this change, but never-the-less was required to submit the examination in handwriting.
p. In March 2009 the applicant complained to the respondent about the tone of a letter from accounts receivable. The applicant spoke to a Ms. P and alleged she was rude and raised her voice. The applicant believes that the President of the respondent had influenced Ms. P to behave this way. The applicant agreed to pay the outstanding fees owed.
q. Part of the SLP involved small group work. The applicant alleges that one of the moderators in the SLP conspired to create tension in his small group beginning with an email of April 27 2009. The applicant makes a number of allegations about his fellow students conduct over the course of May and June 2009. Much of the narrative of this part of the Application relates to the conduct of the students in the applicant’s group. However the applicant seems to believe that the intra-group problems were an element of a “hate, intolerance and revenge” campaign on the part of the President of the respondent. In this regard the applicant alleges that Ms. P encouraged the group to complain about him; the moderators encouraged the group to meet without him and they did not discourage the group from meeting without him.
r. The applicant alleges that he complained to the respondent about the respondent encouraging the group to meet without him. The applicant alleges that the respondent denied encouraging the group to meet without them. The applicant alleges that another student told him that the moderators had been informed that the group might be meeting without the applicant.
s. The applicant alleges that Ms. P arranged a telephone conference call with the group on June 2, 2009 but the applicant did not have access to email that day and did not know about the call which proceeded without him. Despite assurances from some who participated in the call that the group might still work together, not everyone agreed according to the applicant.
t. The applicant alleges that on June 5, 2009 Ms. P caused one of the moderators to write to the group to advise that it would be best to split the team and allow the applicant to make a separate oral presentation of the work product of the group. The applicant alleges that this was unfair because his disagreements with the group on some points and the fact that some of his recommendations were not accepted due to the direct and indirect encouragement of the other team members, in particular J.Y., by the moderators and Ms. P.
u. The applicant asked to meet with the President and then with the Chair of the Board of Governors. The applicant was advised that he could make a request in writing for an independent review of his file by the respondent’s Board of Governors. The applicant alleges that because the matter was urgent he chose instead to contact the Chair of the Board directly to ask her to ensure that the process of his individual presentation to be transparent. The applicant alleges that he left two voice mails. The applicant alleges that the Chair responded that he should prepare a letter and that she supported his request to have the matter reviewed by the Board. The applicant alleges that he attempted to contact Ms. P three times asking for clarification on “this unique processing of doing a presentation on my own.”
v. The applicant alleges that the written report of the group was full of errors and although it received a good mark he is not sure that it deserved such a mark.
w. Sometime after successful completion of the SLP the applicant was provided with Notice of a complaint made to the respondent about his conduct by Ms. P. The applicant was given 30 days to reply. Instead of doing that the applicant wrote to the Chair of the Complaints Committee asking for a meeting with him and the Chair of the Board.
x. The Complaints Committee by letter dated September 14, 2009 advised that the complaint had been referred to the Discipline Committee of the Board.
y. The applicant alleges that on August 14, 2009 he wrote to K.H, Vice-President, Regulatory Affairs and Registrar and asked her to confirm that certain materials had been provided to the Chair of the Board. The applicant alleges that this communication was not responded to until September 20, 2009.
z. The applicant makes a number of allegations respecting delays in getting his designation after having successfully completing the SLP over the summer of 2009. Apparently a written review by a third party (a “validator”) of some of his work which was necessary before a designation is granted was not received by the respondent, although the validator may have provided it in a timely fashion. The applicant also alleges that his validator was asked whether the position held by the applicant was a paid or voluntary position. The applicant alleges that if he had known there was an issue with his validator he would have chosen another validator before the Board of Governors meeting in August 2009 and thereby receive his designation then.
aa. The applicant alleges that in November 2009 the President of the respondent sent a man to his pregnant wife and told her that he had a letter from the Royal Bank of Brampton. The letter was a Notice of the Discipline Committee.
bb. Although this is not entirely clear the applicant was apparently eligible for designation as of late October 2009 but this was delayed for a short time as a result of his non-payment of fees. The applicant was then advised that his application for designation as a Certified Member would not be considered until the disciplinary proceedings had concluded. The Discipline Committee held a hearing over four days December, January, February and April 2009/2010.
4The applicant describes the respondent as “a hate machine, led by a hater”. He states that his primary complaint is that the respondent engaged in a systemic campaign of reprisal following his assertion of his Code rights. The applicant is angry about what he appears to believe was unfair treatment of him by the CMA and the focus of much of his anger is the President of the CMA who the applicant believes masterminded an operation against him. I note that although the narrative sketched out above begins in 2002 the President about whom the applicant complains was only installed in October 2007.
5The respondent denies all of the allegations and while it is not disputed that many of the incidents described by the applicant, or a version of them, did occur, the respondent rejects the assertion that any of these things occurred because of the grounds alleged by the applicant.
The Delay Issue
6Sections 34(1) and (2) of the Code provide:
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.
7As interpreted by the Tribunal these provisions impose a significant burden on an applicant to file their application with all due diligence and file their application within one year of the last incident complained or, or if there is a series of incidents within one year of the last of the series. (See Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241.)
8The Tribunal has interpreted the language “ a series of incidents” as referring to a series of incidents related to each other both in time and in terms of their subject matter. A significant gap in time between incidents in a series will interrupt the series even where the incidents might be said to be related thematically.
9This Application was filed on October 18, 2010. Accordingly for this Application to be timely there must be a credible allegation of discrimination after October 18, 2009. The bulk of the allegations made after that date relate to the Discipline Committee process including the attempt by the respondent to serve the applicant with documents at his home in November 2009. The applicant also alleges that he was advised in late October that his designation would be delayed because of non-payment of a fee required of him.
10I find that there are no allegations of discrimination over which the Tribunal has jurisdiction after October 18, 2009 and accordingly the Application must be dismissed. In particular, I find that the applicant is unable to rely on the fact that the Discipline Committee of the respondent held a hearing and made a decision as an act or acts of discrimination. I am also satisfied that the alleged delay in receiving his designation because of the non-payment of a fee which may have occurred in October 2009 is not an act of discrimination.
11The respondent is established by statute (previously the Society of Industrial and Cost Accountants of Ontario Act, 1941, S.O. 1941, now the Certified Management Accountants Act, 2010, S.O. 2010, C. 6, Schedule B). Pursuant to the statute the respondent is given certain powers including the power and responsibility to discipline its members. Pursuant to this authority the Board of Governors, established a Discipline Committee to protect the public interest by disciplining its members including student members by adjudicating, amongst other things, complaints against its members.
12As reflected in its Decision the Discipline Committee held a full hearing with all of the normal procedural protections afforded a litigant in a quasi-judicial hearing. The applicant was entitled to counsel, and was able to call evidence. He chose not to retain counsel and limited his evidence because of expense. Again as indicated the Decision of the Discipline Committee appears to deal with substantially all of the applicant’s allegations. For example the Decision deals with the allegation that the applicant was deliberately directed to the incorrect location for the exam re-write in 2004. It deals at length with the entire narrative of complaints about the small group issues and the respondent’s alleged involvement in those disputes in May and June 2009. More generally the applicant’s allegations of Islamophobia are clearly raised by the applicant and rejected by the Discipline Committee.
13In any case the Discipline Committee upheld the complaint against the applicant and imposed discipline on him, including cancellation of his membership in the Society; a fine; and the publication of his name on the website. His name is apparently published on the Society’s website and in its Journal. Although an appeal is possible, the applicant appears to have abandoned it, although he disputed that fact.
14The applicant is evidently unhappy with the decision of the Committee. However, the Tribunal has concluded on several occasions that the actions or decisions of some kinds of decision makers are not matters over which the Tribunal has jurisdiction by virtue of the doctrine of judicial immunity. This doctrine prevents collateral attacks on judicial and quasi-judicial decisions by making these types of decision makers immune from litigation against them in their capacity as judicial or quasi-judicial decision makers. If you are unhappy with the decision of these kinds of decision makers, you may appeal the decision or seek judicial review where available, but you are prevented from pursuing litigation against these kinds of decision makers in other fora such as the Tribunal. Although originally developed to protect judges the doctrine has been extended to cover all sorts of decision makers and even mediators in certain contexts (see Karzi v. Jones, 2010 HRTO 982; Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180). The rationale behind the rule, the protection of the independence of decision makers by insulating them from the possibility of collateral attacks on them by aggrieved parties appearing before them, applies with equal force to the Discipline Committee of the respondent which exercises an important public function in policing the membership of the respondent. Accordingly the applicant cannot rely on the Discipline Committee process, the hearing or the decision as acts of discrimination on the part of the respondent.
15The other allegation made by the applicant in the Fall of 2009 relates to delays in the applicant receiving his designation because of his non-payment of a fee required of him. Although included in the narrative it is not at all clear how this could be considered an act of discrimination on the part of the respondent. The applicant did not dispute that the fee was owed. This is not an allegation capable of supporting the conclusion that the respondent had violated the Code.
16The next prior act of alleged discrimination made by the applicant relates to the alleged conduct of Ms. P at the instance allegedly of the President, in manipulating his fellow students and moderators in the SLP group assignment. These events unfolded over the months of May and June – the final presentation being on June 28, 2009 well beyond the Code’s one year time limit.
17Section 34(2) of the Code allows an applicant to file an untimely application if they are able to establish a good faith explanation for the delay. The applicant’s good faith explanation in this case is that he felt obligated to await the outcome of the disciplinary process of the respondent. The Tribunal has held on many occasions that awaiting the outcome of other legal proceedings is not a sufficient good faith explanation.
18For these reasons I find that the Tribunal has no jurisdiction to consider this Application. The Application is out of time and must be dismissed, there being no remaining allegations made in the 12 months prior to it being filed and no good faith explanation for the delay in filing with respect to the allegations that are beyond the one year time-limit. Having concluded there is no good faith explanation, there is no need to consider whether there would be any prejudice to any party in proceeding further.
19I also find that having dismissed the Application on this basis it is not necessary to consider the other issues raised in the Case Assessment Direction.
20For all of the reasons above the Application is dismissed.
Dated at Toronto, this 22nd day of May, 2012.
“signed by”
David Muir
Vice-chair```