Mortazavi v. University of Toronto, 2012 HRTO 281

Houman Mortazavi

Applicant

-and-

University of Toronto, Adonis Yatchew, Martin Osbourne, Arthur Hosios, Jon Cohen, Shannon Elliott, Brian Corman, Berry Smith, Heather Kelly, Jane Alderdice, Edith Hillan, Jill Matus, Joan E. Foley, Isfahan Merali, and

Hamish Stewart

Respondents

AND BETWEEN

Mojgan Yousefi

-and-

Hamish Stewart

Respondents

DECISION

Adjudicator: Ian R. Mackenzie

Date: February 9, 2012

Citation: 2012 HRTO 281

Indexed as: Mortazavi v. University of Toronto

Houman Mortazavi and Mojgan Yousefi, ) Self-represented Applicants )

University of Toronto, Adonis Yatchew, ) Martin Osbourne, Arthur Hosios, Jon Cohen, ) Shannon Elliott, Brian Corman, Berry Smith, ) Robert Centa, Counsel Heather Kelly, Jane Alderdice, Edith Hillan, ) Jill Matus, Joan E. Foley and Isfahan Merali ) Respondents )

Hamish Stewart, Respondent ) Paul Daley, Student-at-law

INTRODUCTION

1Houman Mortazavi and Mojgan Yousefi were graduate students at the University of Toronto. They each filed Applications on July 6, 2011 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to employment and goods, services and facilities on the basis of race, ancestry, ethnic origin, place of origin, creed, age, and reprisal. The applicants allege that their expulsion from the Economics program at the University of Toronto was discriminatory.

2On September 14, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) ordering a summary hearing of the Applications, on its own initiative. The respondents were not required to file a Response to the Applications. The issues to be addressed in the summary hearing were as follows:

a. The timeliness of many of the allegations;

b. The applicants must show that there is a link between the alleged actions of the respondents and a Code ground;

c. The allegations of reprisal and their connection to an assertion of human rights; and

d. Whether it is appropriate to name 13 personal respondents.

3The applicants filed a Statement of Claim against the University of Toronto and most of the individual respondents in their Applications on or about December 20, 2011. This Statement of Claim was provided to the Tribunal by the respondents on January 23, 2012. The respondents asserted that subsection 34(11) of the Code was a bar against the Applications.

4I issued a CAD on January 30, 2012 advising the parties that the issue of subsection 34(11) as a bar to the Applications would be addressed at the already scheduled summary hearing, in addition to the issues identified in the September 14, 2011 CAD.

5The applicants submitted a request to amend their Applications on January 3, 2012. The amendment requested was to add a more detailed chronology of events to the Applications. At the summary hearing, the respondents consented to the amendment of the Applications. Accordingly, the Applications are amended.

6In the amended Applications, Hamish Stewart is named as a respondent. Mr. Stewart was represented at the summary hearing. His representative adopted the submissions of the other respondents.

7I heard submissions on all of the issues set out in the CADs. However, in light of my finding that subsection 34(11) of the Code applies to these Applications and is a complete bar to the Applications, I do not need to address the other issues.

Submissions

8The applicants submitted that it was not their intention to have two processes proceed at the same time. As a result of the CAD issued on September 14, 2011, the applicants became concerned that part of their Applications might not be addressed by the Tribunal. They filed a lawsuit because they were concerned about time limits. The applicants proposed that they would put either their Applications or the lawsuit on hold.

9The respondents submitted that the Applications should be dismissed because the Statement of Claim is i) based on the same facts; ii) asserts the same type of allegations; and iii) requests similar remedies. See Jarrett v. Vance 2012 HRTO 24 at para. 12. As the Tribunal found in Jarrett, it does not matter that the Statement of Claim was filed after the Application.

10The respondents submitted that the allegations made and remedies sought are virtually identical in both documents. The applicants specifically plead a breach of the Code in their Statement of Claim. Any differences are inconsequential. All but one of the individual respondents are the same in both proceedings.

11The respondents submitted that applicants are not permitted to defer an Application pending a court proceeding. The Code provision is designed to force people to choose which forum to use and does not allow applicants to wait and see the outcome in one forum before proceeding in the other.

12The applicants submitted that there were cases where the Tribunal had allowed applicants to put their application on hold pending a decision from the Superior Court. The applicants provided no case references to support this claim.

Analysis

13I find that section 34(11) of the Code bars these Applications from proceeding because the applicants have commenced a civil suit based on the same facts and allegations and are seeking similar remedies.

14 Section 34 (11) of the Code provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

15Section 46.1 reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the Court may make either of the following orders, or both:

An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

16In the detailed Applications (43 pages of narrative in the original Applications and an additional 29 pages of narrative in the amended Applications), the applicants allege wrongful dismissal and termination from the Ph.D. program as well as a failure of the respondents to provide a fair investigation and appeal procedure In the Applications, the applicants seek the following remedies: academic remedies, waiver of tuition fees paid, compensation for costs and expenses, compensation for delays and damage to career prospects and reputation, damages for pain and suffering, and a letter of apology.

17The applicants’ Statement of Claim was filed after the Applications were filed. In the 65-page Statement of Claim, the applicants allege that they were inappropriately expelled from the Ph.D. program and make a series of allegations about the conduct of the various appeal processes that are identical to the allegations in the Applications. Significant portions of the Statement of Claim are identical to the narrative in the Applications. In the Statement of Claim, the applicants also allege a breach of a number of statutes, including the Code. In the civil action, the applicants seek compensation for income and other losses, general damages, including damages for pain and suffering, and a letter of apology.

18All but one of the respondents are named as defendants in the Statement of Claim. The respondent not named as a defendant is an employee of the University of Toronto. In its submissions on the removal of the personal respondents, the University of Toronto stated that all respondents were acting within the scope of their duties and it accepted any liability for their actions.

19Based on a review of the Applications and the Statement of Claim, it is clear that the applicants rely on the identical facts, allege a similar breach of the Code, and seek identical remedies as set out in the Statement of Claim.

20Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. The question to be answered is whether the applicants, explicitly or implicitly, raise the Code in their Statement of Claim and seek remedies for an alleged breach of the Code by way of a civil proceeding. See Smith v. Sears Canada, 2010 HRTO 1834.

21A statement of claim need not specifically plead section 46.1 of the Code in order to preclude the jurisdiction of the Tribunal. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11. If a person raises an allegation of an infringement of a right under the Code in a civil proceeding, that individual is barred from filing an application claiming a breach of the Code “arising out of the same factual context”. See Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449.

22I am satisfied that the applicants’ Statement of Claim and these Applications are based on the same facts and that both assert the same type of allegations, as well as seek similar remedies. In fact, the narrative in the Applications and the Statement of Claim are virtually identical. The Statement of Claim also lists the Code as one of the statutes that the applicants allege to have been breached.

23If an application falls within the circumstances described in section 34(11) of the Code, the Tribunal cannot proceed with the application because the language in section 34(11) is a mandatory bar. There is no provision for deferring the Applications pending the outcome of a civil suit, as there is for other proceedings such as grievances. Given my findings that the Applications and the Statement of Claim arise out of the same factual context and seek the same or similar remedies, the Tribunal has no jurisdiction over these Applications.

24In light of my findings with respect to section34(11), it is unnecessary for me to consider the other issues set out in the CAD of September 14, 2011.

25Accordingly, the Applications are dismissed.

Dated at Toronto this 9th day of February, 2012.

”signed by”__________________

Ian R. Mackenzie

Vice-chair