Khan v. Seneca College of Applied Arts and Technology, 2012 HRTO 729

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wasi Khan

Applicant

-and-

Seneca College of Applied Arts and Technology

Respondent

DECISION

Adjudicator: Naomi Overend

Date: April 12, 2012

Citation: 2012 HRTO 729

Indexed as: Khan v. Seneca College of Applied Arts and Technology

AppearanceS

Wasi Khan, Applicant ) Self-represented

Seneca College of Applied Arts and ) Ann E. Burke, Counsel

Technology, Respondent )

1The applicant filed this Application (the “instant Application”) alleging discrimination in employment on the basis of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”).

2Pursuant to a Case Assessment Direction dated November 15, 2011, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the instant Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application, or part of the Application, will succeed.

3In its Case Assessment Direction, the Tribunal directed that the summary hearing would proceed by way of teleconference. Pursuant to Rule 19A.2, the Tribunal directed that the parties be prepared to address the following issue:

The Tribunal does not have the general power to deal with allegations of unfairness. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s own Code rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent’s alleged actions.

FACTUAL BACKGROUND

4In the period from December 2009 to August 2010, the applicant worked for the respondent College as a part-time teacher, teaching a course called “Organizational Behaviour” (“OBR 250”) to a group of post-graduate nursing students in the Nursing Leadership and Management Certification Program (the “Program”).

5The Program is offered in conjunction with a nursing academy (“INSCOL”) in India, and is offered to graduate nurses. The respondent explained it is a two semester post-graduate program that allows nurses from India to gain knowledge of nursing in Canada.

6At the time the applicant taught in the program, there were 12 courses offered over two semesters. OBR 250 was taught in the first semester. Unlike many academic programs, this Program had a flexible starting time, depending on when visas for the incoming students could be arranged. The first group of students taught by the applicant came to Canada in late November 2009, and the applicant taught them during the period running from December 2009 to April 2010. He taught OBR 250 to the second group in the summer of 2010.

7A third group of students was expected in the fall of 2010, but there were problems with getting the requisite visas for this group of nurses, and they did not arrive in Canada until early 2011. The applicant alleges that his supervisor promised him in late August 2010 that he would teach OBR to this third group of students. The respondent disputes that this promise was made.

8The applicant filed an unrelated Application (the “first Application”) against the respondent College in September 2010. He asserts in the instant Application that he was not asked to teach OBR 250 subsequent to September 2010 in reprisal for having filed the first Application. The respondent denies that this was ever a consideration, but asserts that it simply stopped offering OBR 250 in the Program.

DECISION

9The Application does not have a reasonable prospect of success and is dismissed.

ANALYSIS

10The issue that Rule 19A directs the Tribunal to determine is whether the instant Application has no reasonable prospect of success. In the first case decided under the new procedure, Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

11Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

12There is no issue with respect to the legal analysis used by the applicant in his instant Application. The applicant asserts that the respondent reprised against him by taking away his teaching assignment for instituting a proceeding under the Code (i.e., his first Application). If true, this would amount to reprisal, as it is defined in s.8.

13In this case, the issue is whether the applicant has, or has reasonably available to him, evidence that can show a link between not being asked to teach OBR 250 and the filing of his first Application.

14Initially, the applicant suggested in his written material that this link might be inferred from the fact that another person, someone he identified as “Shahina,” was asked to teach OBR 250. He now accepts the respondent’s assertion that OBR 250 was not taught by anyone (and that a “Shaina” taught nursing theory, which is an unrelated course).

15The applicant now submits that the respondent cancelled OBR 250 in reprisal for him filing his first Application. He states that the website for INSCOL Academy shows that OBR 250 is still part of the curriculum and that the respondent has, therefore, failed to live up to its contract with INSCOL and has abused INSCOL and the student’s trust.

16The applicant is not able to point to any evidence in support of his theory that the course was cancelled in reprisal for filing the first application, other than to say he plans to call an unnamed witness who will “explain and testify the administrative and accountability matters.” The respondent states that any evidence with respect to the general practise of the respondent would have no relevance to courses offered as a part of a private contract.

17In his oral submissions, the applicant explained further that under the Collective Agreement he is entitled to be consulted on changes to his courses, and that if the respondent does not respect the Collective Agreement, it is unlikely to respect the Code. The respondent disagrees with the applicant’s interpretation of the Collective Agreement. In any event, the applicant’s logic on this point is flawed, and it would be improper for the Tribunal to rely on such an inference in coming to any conclusion about a violation of the Code.

18Finally, the applicant points to the following passage from para.10 of Dabic:

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

19The applicant speculates that if he is able to see the correspondence between the respondent and INSCOL during the relevant period, it may establish that the course was cancelled for the improper reason of reprising against him for the filing of his first Application. Likewise, he hopes that cross-examination of the respondent’s witnesses might reveal the discriminatory motive for not offering OBR 250.

20Prior to the summary hearing, the applicant was alleging that someone else was assigned to teach OBR 250. Once he learned that this was not the case (a fact which the applicant apparently accepts), his theory of the case presented in written and oral argument shifted to accord with the fact that the respondent did not offer the course. However, the applicant’s new theory is based entirely on bald assertion, unsupported by any factual underpinning.

21I agree with the respondent that it flies in the face of reason that it would intentionally deprive students of a necessary course for the purpose of punishing the applicant for filing the first Application. Given the improbability of the applicant’s allegations, his desire to get disclosure and be allowed to cross-examine seems more in the nature of a fishing expedition than a legitimate need to access what might be highly relevant evidence.

22In light of the failure of the applicant to identify evidence he would call on which the Tribunal might be able to find reprisal, in the event this matter proceeded to a hearing, there is no reasonable prospect that this aspect of the Application will succeed.

ORDER

23The Application is dismissed.