Walweed Al-Ghaithy v. University of Ottawa, 2012 HRTO 654

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walweed Al-Ghaithy

Applicant

-and-

University of Ottawa

Respondent

DECISION

Adjudicator: Ena Chadha

Date: March 29, 2012

Citation: 2012 HRTO 654

Indexed as: Al-Ghaithy v. University of Ottawa

WRITTEN SUBMISSIONS

Walweed Al-Ghaithy, Applicant ) Douglas Christie, Counsel

University of Ottawa, Respondent ) Karen Jensen, Counsel

INTRODUCTION

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") on June 8, 2010, alleging discrimination and reprisal with respect to services, goods and facilities and employment because of race, colour, ancestry, place of origin, citizenship, and ethnic origin. The applicant, a citizen of the Kingdom of Saudi Arabia, was training as a medical resident with the respondent University of Ottawa's Neurosurgery Program. The applicant alleges that he was subjected to harassment and discriminatory treatment while pursuing his medical education with the respondent program. The Application originally identified the respondent University and six individuals as personal respondents.

2The respondents filed a Response on November 3, 2010, denying the allegations of discrimination, harassment and reprisal.

3The applicant filed a Reply on December 2, 2010.

4By way of Interim Decision 2011 HRTO 552, dated March 18, 2011, the Tribunal removed the six personal respondents as parties from the Application.

5On December 22, 2011, the Tribunal issued a Case Assessment Direction seeking submissions from the parties with respect to the issue of potential deferral pending the conclusion of a judicial review proceeding involving the parties. The applicant filed submissions indicating that the issue of deferral was essentially moot because the judicial review hearing was complete and a decision expected to be issued.

6On January 12, 2012, the respondent filed a Request for an Order During Proceedings ("Request") asking the Tribunal to dismiss the Application pursuant to section 34(11) of the Code because the applicant is pursuing a civil action in the Ontario Superior Court making the same allegations as raised in this Application. In the alternative, the respondent asks that the Tribunal defer the Application pending the completion of the civil suit and the related judicial review proceeding.

7On January 27, 2012, the applicant filed a response opposing the Request on the basis that it is premature to consider a section 34(11) dismissal of the Application because the respondent seeks to strike some, or all, of the civil claim. The applicant asks that the Application be held in abeyance until the respondent's motion to strike the civil action is determined. With respect to the judicial review, the applicant submits that it deals with matters that are different from the human rights Application.

8The parties subsequently exchanged additional submissions, all of which have been carefully considered by the Tribunal in reaching this decision.

DECISION

9I find that section 34(11) of the Code bars this Application from proceeding because the applicant commenced a civil suit based on the same facts and allegations and is seeking similar remedies in the civil action as sought in this Application.

Legislation

10Section 34(11) of the Code states:

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.

11Section 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:

1. 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.

2. 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.

Summary of Civil Action

12The respondent provided a copy of the applicant's Statement of Claim (CV-11-440336) filed with the Ontario Superior Court on November 24, 2011, against the respondent. In the civil suit, the applicant is a co-plaintiff with two other medical residents who have also filed applications with the Tribunal against the same respondent(s). The civil action raises multiple claims, including breaches of fiduciary duty, breach of contract, negligence, intimidation, defamation, conspiracy to injure, denial of natural justice and misfeasance in public office.

13The Statement of Claim expressly cites violations of sections 2(b) and 15 of the Canadian Charter of Rights and Freedoms ("Charter"). With respect to section 15 of the Charter, it is alleged that the respondent engaged in "ongoing and systemic discrimination based on racial and national or ethnic origin" against the plaintiffs because of their "Arabic origin". The Statement of Claim describes the alleged differential treatment imposed on the plaintiffs because of their race as "unwarranted criticism and disparagement", "harsh and unreasonable performance standards", "abuse of authority" and "harsher discipline". The Statement of Claim provides numerous examples of alleged discrimination, harassment, undue scrutiny and excessive monitoring, as well as alleged breaches of procedural fairness in the handling of the plaintiffs' academic affairs.

14The Statement of Claim pleads damages for wrongful dismissal, abuse of power, aggravated and punitive damages, legal costs and interest. In addition, the Statement of Claim seeks declarations and damages for the alleged infringement of the plaintiffs' equality rights under the Charter. The Statement of Claim asserts that these damages flow from the respondent's "overall corporate culture...of bullying" and "discriminatory process against medical residents of Saudi national origin and/or Arabic decent...which destroyed the careers of all three plaintiffs."

Summary of Application

15In his Application, the applicant alleges that, while pursuing his medical studies with the respondent institution, he experienced discriminatory treatment from 2007 to 2010 and that he was subjected to reprisal for seeking to enforce his human rights. The applicant indicates that, despite above-average evaluations and positive feedback about his skills and knowledge, his performance was unjustifiably criticized, and that he was required to undergo remediation. The applicant alleges he was subjected to negative stereotypes in that the respondent representatives implied his performance shortcoming were linked to his race or ethnic origin. The applicant alleges that he was overly and unfairly monitored. The applicant alleges that he was denied due process when an individual, who was implicated in his internal complaint as a respondent, participated in a residency program committee decision about his grades. The applicant alleges that he was unfairly given a failing grade and dismissed from the program as retaliation for raising concerns of discrimination. The applicant alleges that the respondent institution failed to protect him from the discriminatory and hostile work environment and further failed to properly investigate his concerns.

16The remedies sought in the Application include damages for loss of salary and legal fees. The Application seeks declarations requiring the respondent to stop the discrimination and to comply with its evaluation and appeals policies in regards to the applicant. The Application also asks for the supervisors and faculty members of the respondent institution to receive human rights education and training.

Parties' Positions

17The respondent submits that this case fits squarely within the provisions of section 34(11) because the Application and the Statement of Claim are concurrent proceedings that raise substantially all of the same allegations and seek remedies for the same human rights violations. The respondent argues that the Tribunal does not have discretion when an application comes within the ambit of section 34(11) and that, therefore, this Application must be dismissed.

18The applicant contends that it is premature to dismiss the Application because the respondent has indicated an intention to strike the civil claim. The applicant argues that it would be unreasonable for the Tribunal to adjudicate the section 34(11) jurisdictional issue on the basis of the Statement of Claim given the respondent's stated intention to challenge the scope of the claim. The applicant submits that the Statement of Claim could be significantly narrowed or struck in its entirety and that it would be unfair to dismiss the Application because in those circumstances he is left with no remedy for the alleged human rights violations.

Analysis

19Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging human rights concerns and seeking remedies for those human rights matters: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282. The determinative question to be considered in undertaking a section 34(11) analysis is whether the civil action explicitly or implicitly raises Code-related interests and seeks remedial redress for those alleged human rights concerns: see for example, Smith v. Sears Canada, 2010 HRTO 1834, and Jarrett v. Vance, 2012 HRTO 24.

20Based on a review of Application and Statement of Claim, I find that there is striking similarity between the facts, legal issues and claims. In both proceedings, the applicant relies on the same incidents, alleges the identical type of human rights contraventions and pleads analogous remedial recompense for the violation of his human rights. There is little doubt that the civil suit's equality right claims to freedom from discrimination based on the section 15 Charter grounds of race, national origin and ethnic origin are comparable to or a synthesis of the Code protected grounds cited in the Application, namely race, ancestry, place of origin, citizenship and ethnic origin.

21Along with the overarching allegations of a poisoned work environment which permeate both actions, I find that the applicant's Statement of Claim makes numerous duplicative allegations of differential treatment and reprisal as asserted in the current Application. For example, the Application and Statement of Claim repeat, amongst many other similar allegations, the following alleged matters:

• The applicant was subjected to individual and systemic discrimination because of race and ethnic origin;
• The applicant was subjected to undue criticism and unfair evaluations;
• The applicant was subjected to excessive monitoring;
• The applicant was subjected to disproportionate blame and unfairly punished;
• The respondent failed to protect the applicant's confidentiality;
• The respondent engaged in unjustified deviations from its policies in handling the applicant's case;
• The applicant was discriminatorily dismissed; and
• The applicant was reprised against for speaking out about discrimination.

22Although the Statement of Claim does not directly cite a provision of the Code, the applicant's human rights concerns are prominently characterized throughout the civil pleadings as differential treatment, hostile environment, intimidation, abuse of power, bullying and lack of due process. The factual and legal matrix of the civil action, which expressly includes allegations of direct discrimination, systemic discrimination, harassment and retaliation, mirrors the content of this Application. I find that the concerns of discrimination, harassment and reprisal which are raised in the Application encompass many of the same facts and allegations which are detailed in the voluminous civil pleadings.

23In addition, the Application and the Statement of Claim seek monetary compensation for similar or parallel heads of damages. Both proceedings request compensation for loss of salary and legal expenses. Notably, both actions also seek declarations with respect to the alleged human rights infringements. As such, I find that it is of little consequence to the section 34(11) analysis that the civil suit is framed primarily in tort.

24In Beaver, supra at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead section 46.1 for the section to preclude jurisdiction:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant's ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant's decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

25Having carefully reviewed the copious materials filed as part of this Application and the civil action, it is clear that the applicant believes that his rights under the Code have been infringed and that these human rights, and the concomitant remedies, underlie the discrimination, harassment and reprisal claims asserted in the civil proceeding. The central issue is not whether the Code was explicitly referenced in the civil action, but whether the facts, legal claims and remedies raised in the civil proceeding are sufficiently distinct that they do not duplicate the facts, legal claims and remedies of the Code application. In the instant case, section 34(11) is triggered because the Statement of Claim asserts the same facts, infringements and remedial requests as alleged in the applicant's Application.

26Further, I do not agree with the applicant that the prospect that all or parts of the civil claim could be struck should sway the Tribunal to retain jurisdiction and hold this Application in abeyance. The applicant's position ignores the fact, as explained in Beaver, supra, that the Tribunal does not have jurisdiction to maintain an application when the applicant has also commenced a civil action asserting Code-related human rights and remedies.

27The Tribunal in Tsehaye v. English District Lutheran Church-Missouri Synod, 2011 HRTO 629, held that the possibility that a class action certification may not succeed did not prevent the invocation of section 34(11) to dismiss an application. As stated in Tsehaye, "[w]here the conditions for applying section 34(11) are present, it is not for the Tribunal to engage in an assessment of any defences to the civil claim, or to consider the possibility that the claim may be dismissed without a hearing on the merits."

28Similarly, in the present case, the possibility that the respondent may move to have the Statement of Claim narrowed or struck does not invest the Tribunal with jurisdictional power to continue with the Application, even for the minimal purposes of holding the Application in abeyance. Section 34(11) is an absolute bar to jurisdiction and an application cannot be processed by the Tribunal regardless of the intentions and litigation strategies of the parties in the civil suit.

29With respect to the applicant's argument that he would be left with no human rights redress if both the civil suit and the Application are dismissed, I note that the Divisional Court recently emphasized that even in those circumstances section 34(11) is not discretionary and bars an application from proceeding: Grogan v. Toronto District School Board, 2012 ONSC 319. The Tribunal does not have jurisdiction and, to paraphrase the Divisional Court, it does not matter that the civil action could be withdrawn or dismissed. "In short, s.34(11) requires an applicant to choose between the Tribunal and a (concurrent) civil action": see para. 48. The Divisional Court also confirmed that the fact that the civil suit was commenced before or after the Application is immaterial to the application of section 34(11).

30I find that the Application falls within the circumstances described in section 34(11) of the Code and, therefore, the Tribunal cannot proceed because the applicant filed a civil action involving the same human rights infringements as alleged in the Application and seeking remedies for those alleged infringements. In conclusion, given that the Statement of Claim and Application rest on exactly the same facts, assert virtually identical rights and claims against the same respondent, as well as seeks similar remedies, the Tribunal has no jurisdiction over this Application. The overlap present in the civil action and this Application is exactly what section 34(11) of the Code was enacted to prevent.

CONCLUSION

31In light of my findings with respect to section 34(11), it is unnecessary for me to consider the issue of deferral. In accordance with the above-noted reasons, the Application is dismissed.