HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mulugeta Said
Applicant
-and-
George Brown College, Liz Fornazier, Heather Blatchford and Anne Mackenzie
Respondents
decision
Adjudicator: Keith Brennenstuhl
Indexed as: Said v. George Brown College
APPEARANCES
Mulugeta Said, Applicant ) Ramin Nikpour, Counsel
George Brown College, )
Liz Fornazier, Heather Blatchford, ) Brenda J. Bowlby, Counsel
and Anne Mackenzie )
Respondents )
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in the area of services on the basis of sex and age.
2By Case Assessment Direction dated December 13, 2011, the Tribunal directed that a summary hearing be held by teleconference. It stated as follows at paragraph 7:
The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during the summary hearing. The applicant shall make argument about why the Application should not be dismissed as untimely and/or as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondents’ actions and the grounds cited.
ANALYSIS
Summary Hearings
3On March 13, 2011 the Applicant filed a Request for Order amending his Application to add the grounds of race, colour, place of origin and ethnic origin and to include additional allegations.
4Having considered the parties’ submissions, I find that this Application is outside the Tribunal’s jurisdiction, as it was filed more than one year after the last alleged event of discrimination and the applicant has not shown that the delay was incurred in good faith within the meaning of the Tribunal’s case law. Accordingly, the Application is dismissed. As the Tribunal has no jurisdiction over the Application as a whole, there is no need to consider if the Application has a reasonable prospect of success or the Request for Order.
Section 34 of the Code
5Under section 34 of the Code, the Tribunal has no jurisdiction to deal with an application filed more than one year after the incident of discrimination, or the last incident in a series, unless it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The section reads as follows:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
Analysis
6The applicant was a student in the Practical Nursing program at George Brown College (the “College”). The program prepares individuals wishing to enter the practice of nursing as practical nurses. The program has four semesters and the fourth semester is primarily a consolidation semester in which the student has a pre-graduate clinical experience under the guidance of a preceptor.
7According to the respondents by the end of the fall semester of 2008, the applicant’s third semester, the applicant had been unable to demonstrate that he had mastered all of the required skills during his clinical course and he was required to take the clinical course again in the next semester. Ultimately, according to the respondents, the applicant was again unable to demonstrate that he had acquired the required skills by the end of the next semester and he failed the course for a second time. As a result of failing the clinical applications course twice, the College policy disqualified the applicant from continuing in the program at the College.
8The applicant appealed his grade through the College’s academic appeal process but was unsuccessful. By letter addressed to the applicant and dated June 2, 2009 the Academic Review Committee informed the applicant that his appeal was denied. The letter read in part: “It is the Committee’s understanding that you may re-apply to the program as of January 2010 semester 4.” According to the respondents, this understanding was incorrect. The applicant failed semester 3 clinical twice and in accordance with the College’s policy the applicant was withdrawn from program. By e-mail addressed to the applicant dated June 16, 2009 the College indicated to the applicant that Committee’s understanding was not correct and that moving to semester 4 was not a possible option for the applicant.
9Following this the applicant requested meetings to review his status and meetings were held with him in the summer and fall of 2009 but, according to the College there was no basis found to digress from the course of action taken by the College. Finally, by e-mail addressed to the applicant and dated January 22, 2010, the College wrote to the applicant that the College’s decision to deny him re-entry into the program was based on his performance in clinical practice and that he had exhausted all available options to have the College’s decision overturned.
10The applicant argues that the last incident of discrimination was on January 22, 2010 when the College sent its e-mail to the applicant saying there was nothing further to be done. Since the Application was filed on November 9, 2010, the applicant contends that the Application was filed within one year after the last incident of discrimination and is therefore timely. The respondents argue that the last incident of alleged discrimination was when the applicant was withdrawn from the program in the spring of 2009, but certainly no later than June 16, 2009 when the College e-mailed the applicant advising that the committee’s understanding was incorrect and that proceeding to semester 4 was not an option for the applicant. By this measure the Application is not timely.
11In my view, the last incident of alleged discrimination occurred when the College withdrew the applicant from the program, which was in the spring of 2009 and although there may have been some confusion as to whether the applicant could move to the next semester at a later point in time this was clarified by the College’s e-mail to the applicant on June 16, 2009. Therefore, whether the last incident is deemed to be the spring of 2009 or June 16, 2009, the application is not timely as it was filed more than one year after the last incident of discrimination or last in a series of incidents of discrimination.
12The applicant argues that the discrimination was ongoing and points to meetings he had with the College following the June 16, 2009 e-mail and, in particular, the College’s e-mail of January 22, 2010 wherein he was advised that the College’s decision would stand. The applicant’s ongoing interactions with the College following the June 16, 2009 e-mail represented attempts by the applicant to get the College to reverse its decision and in my view cannot be seen as further or separate incidents of discrimination.
13The Tribunal has rejected the idea that continuing effects of an allegedly discriminatory action constitute an “incident” for the purpose of s.34. In Mafinezam v. University of Toronto, 2010 HRTO 1495 the Tribunal made the following comment at para. 13:
The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” to which the Application relates. In this case, I find that the “incident” to which the Application relates is the issuance of the Trespass Notice against the applicant in July 2004. This is the action which is alleged to be discriminatory. Insofar as the applicant submits that there is “ongoing” discrimination, I agree with the decision in Visic, above, to the effect that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination. In Visic, the Divisional Court upheld a decision of the Ontario Human Rights Commission (the Commission) which declined to deal with a complaint on the basis that it had been filed beyond the six-month time limit then in the Code (the Code was subsequently amended to provide for the current one-year time limit). The Commission did not accept the complainant’s argument that a university’s repeated reliance on
a transcript claimed to be discriminatory extended the limitation period in the Code.
See also Degen v. Toronto (City) 2011 HRTO 319, 2011HRTO 319.
14Applying Mafinezam, I find that this Application does not relate to an alleged incident of discrimination within the one-year period.
15The applicant did not explain in his submissions in response to the CAD or at the hearing, any basis on which any delay was incurred in good faith.
16Accordingly, I find that the Application is outside the Tribunal’s jurisdiction, as it was filed more than one year after the last incident of alleged discrimination and the applicant has not shown that the delay was incurred in good faith.
17The Application is dismissed.
Dated at Toronto, this 11th day of April, 2012.
“Signed by”
Keith Brennenstuhl
Vice-chair```