Aba-Alkhail v. University of Ottawa, 2012 HRTO 656

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Khalid Aba-Alkhail Applicant

-and-

University of Ottawa Respondent

DECISION

Adjudicator: Ena Chadha Date: March 29, 2012 Citation: 2012 HRTO 656 Indexed as: Aba-Alkhail v. University of Ottawa

WRITTEN SUBMISSIONS

Khalid Aba-Alkhail, 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 because of race, colour, 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 Faculty of Medicine Cardiac Surgery Program. The applicant alleges that he was subjected to harassment and discriminatory treatment while pursuing his medical education with the respondent program.

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

3The applicant filed a Reply on January 12, 2011.

4Various preliminary issues have been raised by the parties and the Tribunal, including a request to amend the Application; a request to defer and questions regarding the timeliness of the Application. The Tribunal issued Case Assessment Directions regarding these matters. However, prior to determination of those matters, the respondent raised an issue with respect to the Tribunal's jurisdiction over the Application.

5On 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 a related academic appeal.

6On February 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.

7The parties subsequently exchanged additional submissions, all of which have been carefully considered by the Tribunal in reaching this decision.

DECISION

8I 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

9Section 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.

10Section 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

11The 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.

12The Statement of Claim expressly cites section 15 of the Canadian Charter of Rights and Freedoms ("Charter") and alleges that the respondent has 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.

13The Statement of Claim pleads damages for loss of income, reputation, mental distress and suffering, future employment and loss of time and opportunity, including 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

14In his Application, the applicant alleges that, while pursuing his medical studies with the respondent institution, he experienced discriminatory treatment from 2006 to 2010 and that he was subjected to reprisal for seeking to enforce his human rights. The applicant alleges that, during his interview, the director of the respondent program stated to him that the program was no longer accepting Saudi nationals; however, the applicant would be the exception because he graduated from a Canadian medical school. The applicant indicates that he was eventually placed on probation, despite lack of notification of any performance deficiencies and contrary to evaluation policy. The applicant alleges that he was informed that he was like "the other Saudis". The applicant alleges that he was subjected to higher standards than non-visible minority residents.

15The applicant alleges that he was dismissed from the program in January 2007 and subsequently, respondent representatives attempted to thwart his attempts to appeal and be reinstated into the program. The applicant alleges that the respondent representatives repeatedly failed to follow the institution's own evaluation and appeals policies. The applicant alleges that he was discriminatorily excluded from training in September 2009. The applicant alleges that false accusations were aired about him and that the respondent continues to refuse to promote him. The applicant alleges that many of the comments and actions of the respondent representatives were related to negative stereotypes about his race and ethnic origin and retaliation for his complaints of discrimination.

16The remedies sought in the Application include damages for loss of dignity, self- esteem and the right to be free of discrimination, mental distress damages and compensation for loss of income and legal fees. The applicant seeks compensation for "reputational damages" and declarations requiring the respondent to stop the discrimination and reprisal. The Application also asks for the supervisors and faculty members of the respondent 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 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, 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 comments reflecting a bias against Saudis/Arabs;
• The applicant was subjected to higher standards and unfair evaluations;
• The applicant was discriminatorily placed on probation and eventually discriminatorily dismissed;
• The applicant was denied training in September 2009;
• The respondent engaged in reprisal to circumvent the applicant's progress in the program and circulated false accusations about the applicant; and
• The respondent engaged in procedural irregularities and contravened its own policies in dealing with the applicant's case;

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, loss of dignity and self-respect, mental anguish, damage to reputation 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.

Dated at Toronto, this 29th day of March, 2012.

"Signed by"

_________________________________

Ena Chadha Vice-chair