Pakarian v. University of Toronto, 2012 HRTO 156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pooya Pakarian

Applicant

-and-

University of Toronto, University Health Network,

Robert Chen, Michael Angel, and Aimee Nelson

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: January 19, 2012

Citation: 2012 HRTO 156

Indexed as: Pakarian v. University of Toronto

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated October 16, 2009, alleging discrimination on a number of grounds including place of origin, citizenship, sex and reprisal. There have been a number of Interim Decisions addressing preliminary issues, including delay, a request to expedite, the addition of a further respondent, and a request by the applicant to give evidence from overseas.

BACKGROUND

2In an Interim Decision, 2010 HRTO 457, dated March 1, 2010, the Tribunal dealt with preliminary issues and outlined the process by which this Application would proceed to a hearing. In an Interim Decision, 2010 HRTO 815, dated April 13, 2010, the Tribunal further clarified that initial hearing days would be set to enable the applicant to call his witnesses and present the evidence that he believes supports his allegations of discrimination.

3In a further Interim Decision, 2011 HRTO 348, dated February 17, 2011, the Tribunal denied a request by the respondents to compel the applicant, who had by then returned to his native Iran, to give evidence in person. The Tribunal ruled that the applicant would be permitted to appear by teleconference to present his case in chief. Upon the completion of the applicant’s case, the Tribunal would determine whether there is a need to cross-examine the applicant and/or to proceed to hear the respondents’ evidence. The parties were to be given a chance to make oral argument with respect to this question.

4Since the applicant’s position was that he could establish his case on the basis of documentary evidence alone, he was directed to produce copies of all documents he intended to rely on and to file a 20-page Statement of Evidence In-chief (“Statement”). The purpose of the Statement was to articulate, in chronological order, claims and information in support of his allegations. The applicant was directed, specifically, to address the following questions:

1. Did any of the respondents, individually or together, subject the applicant to differential treatment on the basis of his background or place of origin? If so, what was the specific action or omission and how was it connected to his background or origin?

2. Did any of the respondents subject the applicant to sexual harassment within the meaning of the Code? If so, what were the specific incidents and how did they constitute sexual harassment?

5On June 13, 2011, the applicant filed a Request for Order seeking to admit an 86-page, typed document, plus 30 additional files containing web pages and documentary fragments. He also requested that additional hearing days be set, and that additional requests embedded in the 86-page document be considered. These requests are extensive, and include [all emphases in original]:

a. The 2010 HRTO 457 has been issued based on what the respondent has submitted to the HRTO; so the HRTO should add defamation and falsification of evidence to my charge against the respondents;

b. I request the Tribunal to order the Dystonia Canada newsletter to publish a misconduct report (not just a corrigendum) in which Robert Chen is declared as the main guilty person;

c. I request the HRTO to consider all items in my complaint as within HRTO’s purview. I request the HRTO to order and supervise all the relevant scientific authorities to completely implement their scientific fraud algorithms on Robert Chen, to inform the HRTO and me of the results, and to take further action in those cases that I consider their already-taken actions inadequate;

d. I request the HRTO to rule for the full penalty of law including but not limited to the maximum duration of IMPRISONMENT of Robert Chen and others (McKnight, Bell, Whiteside, etc.), who were involved in the crimes mentioned above;

e. I request the HRTO to consider that in real daily life, the “techniques” by which the likes of the respondents of this case breach the Human/Civil Rights change through an evolutionary process; but, the Ontario Human Rights Code does not get updated on a daily basis. Therefore, criminals like the respondents of the present case are everyday finding new methods for break the law, yet remain immune to the punishment of law. My case, in terms of the severity of the problems described in it, and in terms of explaining the new mechanisms of breach of Human/Civil rights, is important enough to be a case law for future reference. I request the HRTO to consider all parts of my complaint within the Ontario Human Rights Code;

f. I request the HRTO to process all the issues in the present document regardless of whether they seem to have been mentioned before or not;

g. I request the HRTO to process all the issues raised in the present document regardless of whether they are new or not;

h. I request the HRTO to impose the full penalty of law on the respondents’ three attorneys. Their actions have been towards defeating the administration of laws enforced by the HRTO;

i. I request the HRTO to rule for the full penalty of law, including but not limited to, inclusions of the names Michael Angel, Robert Chen, and Mohammad Alameddine in all Canadian sex offender registries and the full penalty of law including imprisonment of the personal respondents, and ofall the persons having acted for the UofT-UHN in my case. All of them should be removed from their current jobs, should be banned from any such job anywhere in the future, and all their professional and national titles and honors should be removed. All their professional licences (medical or otherwise) should be suspended for lifetime;

j. Among the guilty is Alameddine, who has already left Canada and is working at the American University of Beirut, so, for having him return to Canada to serve his penalty, INTERPOL’s assistance is needed; I request the HRTO to NOT hesitate in this regard;

k. Although, apart from the three personal respondents, no one else talked with me about Ms ABC, I will NOT be surprised if I learn that Robert Chen had spread his gossips and blame-games everywhere outside his lab. This is important; because if this has been the case, then a reason why the UHN ignored my complaints could be this issue; however, I am not sure if the UofT was also affected by this issue of not; because Ms ABC was only affiliated with the UHN, she had no affiliation with the UofT; so no issue related to Ms ABC could be of UofT’s interest; yet the UofT also mistreated me (a UofT affiliate) and my academic complaints. I request the HRTO to look into this issue;

l. Regarding certain parts of my complaint, I also request the HRTO to add the three attorneys (Elizabeth Grace, RanjanAgarwal, and Sari Springer) and the CPSO to the respondents; yet those sections of my complaint can still be processed even if my request for addition of these parties should be rejected.

6The respondents objected to the applicant’s Statement and asked the Tribunal to refuse to admit it. They further objected to the applicant’s additional requests and cited the applicant’s copying of inflammatory email to numerous unrelated parties as indicia of abuse of process and asked the Tribunal to accordingly dismiss the Application.

7On June 28, 2011 a hearing was convened by way of teleconference during which the parties made submissions with respect to the respondents’ objections, and on whether the applicant’s materials established a case for the respondents to meet.

THE FACTS

8A detailed overview of the alleged facts can be found in the Interim Decision 2010 HRTO 457, dated March 1, 2010. The Tribunal’s pre-hearing Order directed the applicant to produce a Statement that would explicitly link his allegations of discrimination and harassment to specific alleged facts that, if accepted as true, could give rise to a finding that the Code had been breached. The Statement was to provide such facts in the form of information and claims that the applicant would adopt under oath.

ISSUES

9The issue for me to decide, at the outset is: Are the applicant’s documents admissible as evidence?

10If the applicant’s documents are to be admitted, then the question will be whether he has established, on the basis of unchallenged evidence, a prima facie case of discrimination or harassment within the meaning of the Code? If the answer to this question is positive, only then might it be necessary to provide an opportunity for cross-examination of the applicant before hearing the respondents’ evidence.

POSITION OF THE PARTIES

11The respondents are represented by three separate counsel and have not formally advanced joint submissions. However, on the issues before me, their positions are not substantially dissimilar, so I will refer to the collective positions of the respondents, noting material differences only if and where they arise.

12The respondents argued that the applicant’s documents should not be admitted because both the form and content are in violation of previous rulings and orders of the Tribunal. In terms of the form, the respondents noted that the applicant’s Statement is substantially lengthier than the 20 page limit directed by the Tribunal, is not organized chronologically, and is not produced on consecutively-numbered pages. In terms of content, the respondents argued that the Statement goes well beyond the two questions posed by the Tribunal, contains argument, often of a rambling, repetitive nature, which expressly challenges previous Tribunal rulings, strays into areas beyond the Tribunal’s jurisdiction, raises new allegations, and makes inappropriate, combative, even defamatory, accusations against the respondents and the Tribunal.

13The respondents also protest the applicant’s conduct, which the respondents characterized as being in “bad faith” and giving rise to an abuse of process. In particular, they pointed to the fact that the applicant’s Statement was delivered to an additional 49 individuals unrelated to the case, including various politicians, government officials, senior administrators at various universities and other individuals associated with the individual respondents.

14Through a combination of breaches of the Tribunal’s orders and Rules, coupled with electronic dissemination of inflammatory pleadings and evidence, the respondents submit that the Tribunal should put an end to the applicant’s misuse of the Tribunal’s process. They asked the Tribunal to strike the materials without leave to re-file, and to dismiss the Application as an abuse of process.

15The applicant previously made representations to the effect that his “entire case” of alleged discrimination by the respondents could be proved by documentary evidence. He maintained this position at the hearing, stating that, “every single paragraph details the ways in which I was discriminated against.” He argued that the 86-page document, with additional hyperlinks to website pages, and 30 supporting documents, contained the entirety of his case. He testified that he had been working on it “every day” for the previous year and that it was impossible to remove or re-write the content.

16Regarding compliance with the Tribunal’s directions, the applicant stated that his documents are “in compliance” with the order and are “even better than that.” He said that the length could “easily” be shortened to 20 pages by changing the font. He further maintained that the document was completed in good faith in order to “assist” the Tribunal.

ANALYSIS

17The respondents are making a number of arguments that in totality characterize the Application as an abuse of process. I am not persuaded that the features of this case disclose an abuse of process, within the narrow and cautious application of this doctrine in the jurisprudence of the Tribunal. See: Khaiter v. York University, 2010 HRTO 1901.

18What I must, however, decide is whether, applying the Tribunal’s Rules as well as principles of natural justice, I should admit the applicant’s evidence, and if so, whether on the totality of the evidence the applicant has demonstrated a prima facie case of discrimination and harassment.

Admission of Documents

19The Tribunal has the power to refuse to admit evidence that does not comply with its Rules or directives. In a previous Interim Decision, the Tribunal gave the applicant the opportunity to present his evidence by teleconference, despite objections by the respondents, who claimed, among other things, that it would be unfair for them not to face their accuser in person. The applicant was granted this extraordinary remedy, with a few clear conditions. These were that he file all the documents he intended to rely on, along with a 20-page statement of facts, which would serve as a proxy for his evidence in-chief.

20Instead, the applicant took a completely different course. Without leave, notice or warning, the applicant filed a very different document in a form of his own choosing. There is no indication that the applicant did not understand what was being asked of him or was incapable of understanding. At the hearing, it was clear that he was aware of the concerns as he attended and was prepared to justify his conduct. I did not find his explanations to be persuasive.

21Instead of following the Tribunal’s clear directions, the applicant chose to follow a course of his own choosing, which had prejudicial effects on the respondents and undermined the authority of the Tribunal.

22The Tribunal has the power to relieve parties from the strict enforcement of the Rules where it would be fair, just and expeditious. Therefore, notwithstanding the aforementioned circumstances, I have decided to examine the Statement filed by the applicant, and the supporting documents that are directly cited and relied upon.

23In deciding to examine the Statement, I am convinced that, to the extent that the respondents have already endured prejudice, they have had ample opportunity to review the Statement and make fulsome submissions in relation to it. No further harm will be occasioned by my reviewing the document.

24However, I agree with the respondents that it would not be fair, just or expeditious to admit those parts of the Statement that are not evidentiary statements, but rather are argument and additional requests that are either beyond the jurisdiction of the Tribunal or untimely. It is unnecessary to rule on the applicant’s request for additional hearing days, given that the purpose of the first day of hearing was to determine whether further days would be required.

25The applicant devotes considerable attention in the Statement to contest a previous Interim Decision of the Tribunal in relation to his case in 2010 HRTO 457. The applicant had been unsuccessful in his previous efforts to have that Interim Decision reconsidered, and had already been warned that being combative with other parties, or with the Tribunal, is not helpful. See 2010 HRTO 815 at para. 16.

26In a Case Assessment Direction dated December 13, 2010, the Tribunal noted that in a recent case conference it had:

…reminded the Applicant that his Request for Reconsideration of that Interim Decision was already denied and that he will not be afforded a further opportunity to seek reconsideration and ‘correction’ of the Interim Decision … The Applicant indicated that he understood the consequences of the Reconsideration Decision and that he was not seeking any specific relief.

27I am therefore not considering any of the applicant’s arguments related to the Interim Decision.

28Finally, parts of the Statement relate to proceedings under the Regulated Health Professions Act (RHPA). Under section 36(3) of the RHPA, “no record of a proceeding under this Act” and “no report, document or thing prepared for or statement given at such a proceeding” is admissible in a civil proceeding. The courts have held that the purpose of this provision is to keep College of Physicians and Surgeons of Ontario (CPSO) regulation and civil proceedings separate. Such documents should not even be listed or disclosed in the Affidavit of Documents of a party to a civil proceeding: see M.F. v. Sutherland, 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) [leave to appeal to the SCC denied].

29The Tribunal has had occasion to apply this provision in the context of a Tribunal hearing, stating that “in the adjudication of this Complaint, the Tribunal will not take into account anything with respect to the RCDSO’s disciplinary hearing because it is statutorily prohibited to do so.” See Farias v. Chuang, 2005 HRTO 22 at para. 149.

The offending disclosures are contained in paragraphs 60-62 of the applicant’s Statement, and an attached letter from the CPSO. These paragraphs and the letter are inadmissible and therefore do not properly form part of the record before me.

No Prima Facie Case Of Sexual Harassment

30In my Interim Decision of February 17, 2011, I explained the basis for proceeding at this stage with an assessment of the case on the basis of documents and the applicant’s Statement of Evidence. Having considered the material filed by the applicant and his submissions during the conference call hearing, I find that the applicant has not established a case for the respondents to meet.

31In reviewing the applicant’s Statement, in conjunction with the allegations he has made in the Application, I do not find that there is sufficient credible evidence to support reaching the conclusions he asks the Tribunal to make.

32To the extent that any of the statements relate to allegations of sexual harassment within the jurisdiction of the Tribunal to address, the statements tend to be either or both over-stated and lacking in particulars, such that they fail to be credible. For example, the applicant claims that he was subjected to “frequent” unwelcome comments regarding sex, forming one of the bases of his claims of sexual harassment. Yet, the examples he gives are undated, contain only general facts about the events, and are framed as evaluations and conclusions of alleged behaviour rather than specific descriptions. The applicant devotes most of his attention to speculating on the motives of others and detailing his emotional reaction to those speculative motives.

33Where there are some factual descriptions, they do not contain the key facts required to establish a breach. For instance, he describes an incident in “Oct/Nov 2006” when Chen:

…unexpectedly ‘kind of’ congratulated me for just having started a romantic relation with Ms ABC; his behaviour, as always, was annoying and stupid; so I didn’t answered [sic]; I simply took the paper and walked away… During Sep 2006-Feb 2007, a few times Michael Angel and Aimee Nelson talked about whether I was a ‘good match’ for Ms ABC (or vice versa) for a romantic relation; their concept of ‘good match’, however, was not only focused on behavioral issues, it was sometimes extended into talking about Ms ABC’s body and my body in a way that bordered sexual harassment [emphasis in original].

34The applicant does not specify what comments were allegedly made or describe why they were unwanted. It appears he was mostly irritated by the comments due to inter-personal issues, and concedes that the actions may only have “bordered” on sexual harassment.

35In relation to another incident, the applicant complains about overhearing an unnamed woman in the workplace discussing “in graphic detail” her night-time urination habits during a safari in Africa, as an example of a sexualized working environment sanctioned by Chen. He then tells about Angel’s “never-ending ‘lectures’ about the circumcision of his second son”, as further proof of a sexualized workplace. The applicant cites these incidents as “only two, among countless [sic], of the sexually inappropriate atmosphere in Robert Chen’s lab on a daily basis.” In other places, the applicant makes further unparticularized claims about “unwelcome comments about people’s body”. Accepting the applicant’s description as true, on their face, these incidents do not amount to sexual harassment within the meaning of the Code.

36Section 7(2) of the Code provides that:

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

37The Code defines “harassment” under section 10(1) as follows:

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

38To the extent that the applicant has provided particulars, I do not find these claims can support a finding of sexual harassment within the meaning of the Code. The applicant has explicitly decided not to present his story in any chronological order, as requested by the Tribunal. This failure in organization, combined with the lack of key particulars for such claims, makes it very difficult to find any credible evidence of sexual harassment in the Statement.

39Furthermore, even if I accept as true these allegations, they do not disclose a prima facie case of sexual harassment.

No Prima Facie Case Of Discrimination

40The applicant’s allegations and statements describe what he perceived to be personal hostility by the personal respondent Chen in his laboratory where the applicant worked. The allegations include direct discrimination, academic dishonesty and fraud, and misappropriation of intellectual property.

41In Interim Decision 2010 HRTO 457, dated March 1, 2010, I summarized the allegations of discrimination. Having now reviewed the allegations in the Application in conjunction with the Statement, it remains apparent that the applicant’s allegations of discrimination (as opposed to dishonesty or fraud, which are beyond the jurisdiction of the Tribunal) are substantially based on inferences, assumptions and indirect, assumed factual connections that are not obvious or apparent on an objective reading of the facts.

42For example, the applicant claims that Chen refused him funding to attend a conference and course based on discriminatory factors, yet provides no further supporting evidence for drawing this conclusion. The applicant’s belief that he was discriminated against is not evidence of discrimination. The applicant further claims that he was threatened with dismissal for poor performance. Again, the applicant makes the unsupported claim that this threat was a guise for discrimination, without citing any additional facts.

43The applicant further claims that he was discriminated against on the basis of his nationality because preferential treatment was shown to his Canadian peers, the respondents, Angel and Nelson. There are no facts to support an objectively apparent conclusion that the applicant was a superior researcher to both of them. Rather, he relies on further unfounded claims, such as, “…consider that Aimee Nelson, using my scientific product, got a faculty position at the University of Waterloo.” Further “proof” of discrimination is that Angel received “an annual income as high as a six digit figure; but my income was never increased.”

44Regardless of the truth of these claims, it is clear that the applicant felt he was not achieving the same opportunities and advancement as his colleagues. However, there is no basis on the face of the evidence before me to accept that any differential outcomes were caused by Chen or that such actions were based on prohibited grounds.

45In terms of the accusations made against Chen, again the applicant’s assertions are broad and unsupported by any specific evidence that establish a link to the grounds relied on. The applicant states that:

Robert Chen, starting a couple of months into my fellowship, projected HATRED towards me; as he noticed that I, while Middle-Eastern-trained, could truly understand the scientific topics that he, although trained in famous Western universities, was NOT able to understand… [emphasis in original].

46I have no trouble accepting that the applicant and Chen had major challenges in their working relationship, which underlies most of the claims encompassed in the Application. However, the applicant asks the Tribunal to find that these challenges were not only all Chen’s fault (which, even if true, does not necessarily lead to finding a Code breach), but that they were based on discriminatory considerations. I am not convinced of either.

47Beginning around April 2007, the applicant began complaining about a variety of issues arising from his working relationship with Chen. He initiated a complaint to the Director of International Development and Partnerships, Post Graduate Medical Education at the University of Toronto, Dr. Mohamed Alameddine, who investigated and proposed ending the fellowship early, apparently in order to minimize friction between the parties.

48The applicant remained dissatisfied with the handling of his complaint, and the next series of allegations relate to an alleged discriminatory mishandling of his complaints by the University and the UHN, and the resultant impunity on the part of Chen and the other personal respondents. The applicant proceeded with numerous complaints, including to an academic journal making serious allegations of academic fraud. I have reviewed documents on file related to the applicant’s internal complaints, and the academic complaint. None of his allegations in other fora, which are essentially the same allegations as here, framed differently, have been upheld.

49Based on my assessment of the applicant in his presentation of his case, he has a tendency to state beliefs in the form of conclusions, and to present his theories as evidence. He is hyper-critical of the decisions and behaviours of virtually every person he mentions. He has even continued to contest final decisions and orders of the Tribunal even when he has confirmed that he understands such requests will not be granted. The opening lines of his Statement are illustrative of the applicant’s state of mind:

This is to present my case pursuant to the interim decisions 2011 HRTO 348 and 2010 HRTO 457. In my case, the chronological order of event [sic] is not the only important thing; more important are the semantic relation and the technical value of events. In order to be of assistance to the HRTO with these concerns, I, the applicant, hereby present by case by a series of counterarguments against the 2010 HRTO 457; otherwise, the HRTO will miss the semantics and technicalities of events.

50By way of this introduction, the applicant sweeps away the specific orders of the Tribunal to present his evidence chronologically and with reference to specific events, preferring instead his own approach, which focuses on the “semantic relation and the technical value of events”. He also expressly commits to present his case as a counterpoint to an earlier Interim Decision that he had already acknowledged was not up for further reconsideration. The applicant chose to ignore the stipulated structure and process, and instead imposed his own conception of what is proper and required to adjudicate his case. He has consistently dismissed challenges to his allegations as uninformed, discriminatory or even criminal. He suggests that any potential doubt on the part of the Tribunal as to the veracity of his claims would be the result of a “conspiracy plotted by Robert Chen aimed at tarnishing the HRTO’s integrity”. He accuses the respondents’ counsel of professional misconduct and criminal acts, based solely on their legitimate representation of their clients’ interests.

51For all of the reasons cited above, I find the applicant’s statements without support or merit, and therefore unpersuasive, His statements demonstrate a subjective mindset that obsessively finds fault in others and victimhood in self. For these reasons, I find the applicant’s unsupported claims difficult to accept as credible on their own.

52From the material on record, it appears that the institutional respondents, who are accused of tacitly endorsing and authorizing the personal respondents’ directly discriminatory conduct, fully investigated the issues raised by the applicant. These issues were broader than the narrow issue of discrimination and harassment that is before me. The fact that the applicant feels so strongly that he was further victimized by the investigation process is more likely, on balance, to be the result of the applicant’s absolute conviction that he was treated poorly by Chen, and by his obvious desire to be vindicated, than of a discriminatory or deeply flawed investigation.

53Having found the applicant’s underlying claim of discrimination and harassment to be unsubstantiated, the only question is whether the investigation was reasonable. I do not accept the applicant’s view that the investigation was not reasonable, based on my determination that his credibility on this point is not reliable, for the reasons discussed above.

54In sum, I do not find support in the evidence for any of the applicant’s allegations of sexual harassment or discrimination.

55Based on all of the above, it is unnecessary to hear further evidence.

ORDER

56The Application is dismissed.