Bystrov v. Algonquin College of Applied Arts and Technology, 2012 HRTO 336

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandre Bystrov

Applicant

-and-

The Algonquin College of Applied Arts and Technology

Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: February 21, 2012

Citation: 2012 HRTO 336

Indexed as: Bystrov v. Algonquin College of Applied Arts and Technology

WRITTEN SUBMISSIONS BY

Alexandre Bystrov, Applicant ) Self-represented

1On December 20, 2011, the Tribunal issued its Decision in this Application, 2011 HRTO 2276, dismissing the Application (“the Decision”). The applicant has asked the Tribunal to reconsider its Decision by filing a Request for Reconsideration under Rule 26 (“the Request”). The Tribunal has not asked the respondent to respond to the Request.

BACKGROUND

2The applicant alleged that an article entitled “From Russia, with love” (“the Article”), which appeared in the winter 2010 edition of “Glue”, a student magazine published by the respondent’s Faculty of Arts, Media and Design, constituted discrimination and harassment to him under the Code on the grounds of place of origin and ethnic origin in the social area of goods, services and facilities, and specifically education. The applicant was, at the time, also a student. The Article, the applicant alleged, contained false statements and created a negative image of the Russian nation. The applicant self identifies as being from Russia. The applicant also alleged that he raised concerns about the Article with various members of the respondent, and in accordance with its harassment and discrimination policy, but the respondent failed to address his concerns.

3The respondent filed a Response and a Request for Summary Hearing (“the Request”) further to Rule 19A of the Tribunal’s Rules of Procedure and filed supporting materials. The applicant did not file a Reply, but did file a Response to the Request for an Order During Proceedings (“the Response to the RFOP”) and supporting materials, in which he objected to the summary hearing proceeding by way of teleconference. A Case Assessment Direction (“CAD”) was issued by the Tribunal, dated May 13, 2011, granting the respondent’s Request and advising that a half-day teleconference hearing would be scheduled by the Tribunal to determine whether the Application should be dismissed on the basis that it had no reasonable prospect of success and/or is outside the Tribunal’s jurisdiction.

4A Summary Hearing was originally scheduled for October 18, 2011, but was rescheduled due to the unavailability of one of the parties. It was subsequently rescheduled for, and held on, November 8, 2011. In the Decision, the Tribunal held that the Article was not a “notice, sign, symbol or other similar representation” within the meaning of section 13(1) of the Code. In the alternative, the Tribunal stated that even if section 13(1) applies, which it found it did not, then the comments were permitted within section 13(2) of the Code, as well as section 2(b) of the Canadian Charter of Rights and Freedoms, which provides for “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. The Tribunal dismissed the Application on the basis that the applicant’s allegations with respect to the Article did not have a reasonable prospect of success. At para. 17, in light of its conclusions, the Tribunal stated:

In this case, and leaving aside the issues of whether the respondent is providing a service to the applicant in the publication of the magazine and/or whether or not the applicant was harassed and/or discriminated against by the contents of the Article, I find that the applicant’s allegations with respect to the Article do not have a reasonable prospect of success and are thus dismissed.

THE REQUEST FOR RECONSIDERATION

5In the Request, the applicant submits that the Decision is in conflict with established case law or Tribunal procedure, the proposed reconsideration involves a matter of general or public importance and that there are other factors that exist that outweigh the public interest in the finality of Tribunal decisions.

6The applicant raises a number of concerns with the Summary Hearing and the Decision that he sets out in detail. He alleges:

• The Tribunal’s decision to hold a Summary Hearing was unreasonable and in conflict with the Tribunal’s Practice Direction on Summary Hearings which provide that a summary hearing is intended to provide an opportunity for “early determination”. The applicant submits that the Summary Hearing was held 19 months after the Application was filed. Further, it was held via a teleconference call, in favour of the respondent, as the applicant did not agree with this forum;

• The Vice-chair gave “some advantage” to the respondent including granting it more time to make its submissions, denying the applicant an opportunity to respond to part of the respondent’s submissions and conducting the hearing in less time than the half-day for which it was scheduled;

• The Vice-chair omitted a “very important fact” that he was a student of the respondent and receiving an educational service when the discrimination and harassment occurred. The applicant asserts that his complaint is “a complaint about creation and support by management or college [of a] poisoned educational environment for students of college through negative stereotyping of whole nation”;

• The Vice-chair made “a few falsifications” about the respondent’s submissions, “made a false interpretation of law” and “demonstrated the total misunderstanding of human rights law, including Ontario Human Rights Code”, and “poor knowledge of human rights law including the Canadian Charter of Rights and Freedoms”, “poor performance as a lawer [sic] and poor knowledge of law, including international law, Canadian Charter of Rights and Freedoms, Canadian Human Rights Act and Ontario Human Rights Code”. He cites, as an example, the wording of paras. 6 and 22 of the Decision and claims “There is international law, signed by Canada, which limits freedom of expression. There is Canadian Human Rights Act, which limits freedom of expression. The adjudicator decided that allegations of applicant are only against Article, and, in the context of section 13(2) of the Code, do not have any reasonable prospect to success [sic]”;

• The Vice-chair “exchanged the real case [with a] different one”, did not reproduce all of section 13 of the Code in the Decision, and referenced cases that pertained to newspapers, not education which was the subject of the applicant’s Application. Further, the Vice-chair referred to court decisions from Saskatchewan and Manitoba, and not Ontario;

• Section 13 of the Code has “zero meaning” and that it is an inoperative piece of provincial legislation according to the doctrine of paramountcy. He submits that the federal Canadian Human Rights Act and the Code regulate the same activities and conflict as a result the federal law prevails and renders the provincial law inoperative; and,

• The Vice-chair was legally wrong when she accepted that the respondent ignored the applicant’s complaints under its policy, but concluded this did not constitute a violation of the Code. The applicant asserts that any complaint about discrimination should be investigated.

DECISION

7Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

8The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

10As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

11The applicant relies on Rule 26.5(c) in support of the Request. However, he has not provided any case law or Tribunal procedure with which the Decision is in conflict. He also relies upon Rule 26.5(d) in support of the Request, but has not set out other factors that outweigh the public interest in the finality of Tribunal decisions.

12The Tribunal’s Practice Direction on Summary Hearing Requests (“the Practice Direction”) does state that it’s purpose is “…intended to provide an opportunity for early determination of whether there is a reasonable prospect the applicant can succeed, as well as any other issues identified in the HRTO’s Case Assessment Directions”. While the Practice Direction uses the words “early determination” there are no time limits on when a party can request a summary hearing or when the Tribunal can initiate this determination. Summary hearings are intended to be used before a merits hearing, with its full disclosure requirements set out in Rules 16 and 17, is scheduled and held. Later in the Practice Direction it states that a party can make a request for a summary hearing “[a]t any time after an application has been filed with the HRTO”. Sometimes the summary hearing is held after an application has been filed and before the Tribunal has required the respondent to file a response (see Kostiuk v. Ottawa (City), 2011 HRTO 16); sometimes it is requested by a respondent after it receives the application (see Somwar v. Metal Supermarkets Corporation, 2011 HRTO 2321); sometimes it is initiated by the Tribunal itself (see Anand v. Mohawk College, 2012 HRTO 151) and sometimes it is initiated after a mediation has failed and before a merits hearing is scheduled (see Kamal v. Federation of Law Societies of Canada, 2011 HRTO 1459).

13It is within the Tribunal’s discretion to determine whether the summary hearing is conducted as a teleconference or in-person hearing. The applicant did object to this forum when he filed his Response to the RFOP, submitting “A conference call would give a significant advantage to a party with better working office and communication equipment, so meeting is preferable. Also witnesses can be required on the part of the Application”. After reviewing the parties’ submissions, the Tribunal issued CAD granting the respondent’s request for a summary hearing and scheduling it by teleconference call. Only a telephone is required for a summary hearing, not special equipment, and the Tribunal provides a toll free number into which the parties can call. The summary hearing date was rescheduled to a later date because the respondent was initially unavailable on the first date.

14The applicant is correct that the summary hearing did not last for the half day for which it was scheduled; instead it lasted for one hour and four minutes. No evidence from witnesses was heard. In addition to the comprehensive written materials filed by the parties, the Tribunal heard fulsome submissions first from the respondent, then from the applicant who responded to the respondent’s submissions, and then from the respondent in reply to address issues raised in the applicant’s submissions.

15The applicant’s assertion that the Tribunal “exchanged the real case [with a] different one” because it relied upon decisions, including court decisions from other provinces, about newspapers rather than education is without merit. The court decisions referenced in the Decision contain comparable language to that found in section 13 of the Code and further are about columns and editorials in newspapers, including student newspapers, one of which a university was named as respondent (see Saskatchewan (Human Rights Commission) v. Engineering Students’ Society, 1989 CanLII 286 (SK C.A.)). These were appropriate comparators to the Article which was published in the student magazine by the respondent. The Decision referenced a previous Tribunal decision (Whiteley v. Osprey Media Publishing, 2010 HRTO 2152) which interpreted section 13 of the Code. Further, the Tribunal considered the applicant’s allegations in the education setting, both in terms of the Article and also in terms of the respondent’s harassment and discrimination policy, noting in para. 1 that the specific social ground alleged to have been violated was education.

16The applicant’s allegation that the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (“the federal Act”) has paramountcy over the Code is legally inaccurate. The doctrine of paramountcy, as articulated by the dissent by the Supreme Court of Canada in GMAC Commercial Credit Corporation – Canada v. T.C.T. Logistics Inc., 2006 SCC 35, [2006] 2 S.C.R. 123, at para. 117, as one example, states:

The paramountcy of federal laws over provincial laws in the event of conflict is a doctrine that was established long ago: W. R. Lederman, “The Concurrent Operation of Federal and Provincial Laws in Canada” (1963), 9 McGill L.J. 185. Conflicts that will trigger recourse to this doctrine may occur where it is impossible to apply a federal statute and a provincial statute simultaneously (Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at p. 191), but may also occur where the application of a provincial statute frustrates the legislative purpose of a federal one: Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67, and Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13, at para. 12.

17In Canada, human rights legislation is enacted by each province, such as the Code, as well as the federal legislation being the federal Act. The wording of each provincial legislation, or federal legislation, is different. The Tribunal makes decisions based upon the language of the Code, and the Code‘s language may very well differ from human rights legislation in other provinces or the federal Act.

18Whether a human rights complaint falls under provincial or federal legislation depends on the subject matter of the issues raised in the human rights complaint. For example, a complaint about the federal government or banking falls under the federal Act. A complaint about an educational institution in Ontario with respect to the provision of services with respect to a student’s education and educational services falls under the Ontario Human Rights Code. (See Jaffer v. York University, 2010 ONCA 654, [2010] O.J. No. 4252 (C.A.) and Peel Board of Education v. Ontario Human Rights Commission (1990), 1990 CanLII 6605 (ON HCJ), 72 O.R. (2d) 593 (Div. Ct.).) The Tribunal dismisses Applications that fall outside its jurisdiction when the respondent is federally regulated. (See, for example, Syed v. Rogers Communications, 2012 HRTO 248.) In his Application, the applicant did not allege that the respondent is federally regulated; moreover, there is no basis, on its own initiative, for the Tribunal to consider that the respondent is federally regulated given that the respondent is an educational institution.

19The applicant has not provided any case law upon which to base his assertion that the Vice-chair was “legally wrong” when she accepted that the respondent ignored the applicant’s complaint under its policy, but concluded that this did not violate the Code.

20In sum, I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.