Minoo v. Ontario Family Medicine Residency Program, 2012 HRTO 779

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amir Houssein Minoo Applicant

-and-

Ontario Family Medicine Residency Program Respondent

DECISION

Adjudicator: Ena Chadha

Date: April 17, 2012

Citation: 2012 HRTO 779

Indexed as: Minoo v. Ontario Family Medicine Residency Program

APPEARANCES

Amir Hossein Minoo, Applicant ) Self-represented

Governing Council of the University ) Sari L. Springer, Counsel of Toronto, Respondent )

INTRODUCTION

1This Application was filed on January 31, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment and services, goods and facilities on the basis of race, colour, place of origin, ethnic origin, creed and age.

2For ease of reference, in the balance of this Decision, the cited grounds of race, colour, place of origin and ethnic origin will be described collectively as “ethnic background”.

3The applicant self identifies as a Middle Eastern (Iranian) Muslim medical doctor. The applicant applied for a family medical residency position through a matching service operated by the respondent entity, Ontario Family Medicine Residency Program (“Program”). The Program is an unincorporated committee of six family medicine residency programs, which processes applications of candidates seeking admission into their respective programs in Ontario. The applicant states that, notwithstanding his excellent qualifications and examination scores, he was rejected on three separate occasions for positions in London and Ottawa. The applicant alleges that, in each of the three admissions interviews, he was subjected to body language and comments which he perceived to be insulting and believes to be a form of discrimination because of his ethnic background, religion and age.

4The Application identified the Program as the sole respondent. The Application was delivered to a University of Toronto’s family medicine residency representative who was identified on the Application as the contact for the respondent Program. While the University of Toronto was not named as a party to this proceeding, nor were there any allegations against the individual representative, the Governing Council of the University of Toronto (“Governing Council”) nonetheless elected to file a Response (Form 2) because the Application was delivered to its representative.

5In its Response, the Governing Council requested that the Application be dismissed because the Program is not a legal entity, but rather a steering committee of the six family medicine residency programs, and because the facts as pleaded in the Application do not describe prohibited conduct under the Code. The Governing Council also raised the issue of delay of some of the allegations as per section 34(1) of the Code.

6By Case Assessment Direction dated June 2, 2011, the Tribunal directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure (“Rules”). The purpose of the summary hearing is to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the allegations would succeed.

7A hearing by teleconference was held in this matter on December 6, 2011. Both the applicant and counsel for the Governing Council participated on the call.

8Having carefully considered all the documentary evidence and oral and written submissions of the applicant and the Governing Council, I have determined that there is no reasonable prospect that the Application will succeed. Accordingly, I am dismissing the Application for the reasons that follow.

PRELIMINARY ISSUES

9On November 23, 2011, the applicant filed a Request for an Order During Proceedings (“RFOP”) making a broad range of requests. The applicant seeks the following relief:

(a) Permission to add respondents who allegedly were responsible for the residency program selection criteria and decisions, including the Canadian Resident Matching Services (“CARMS”) and the two universities who interviewed the applicant as a candidate;

(b) Permission to discuss information about the interview process which the applicant indicates is the subject of a confidentiality agreement;

(c) Permission to amend his Application to include additional facts; and

(d) An order requiring the respondent and proposed respondents to produce a list of all successful candidates in the 2008-2010 match programs, including disclosure of their place of birth, medical school, qualifications and examination and interview scores, as well as the reasons for why these candidates were selected over him.

10Pursuant to Rule 19.2 of the Tribunal’s Rules, a RFOP must be delivered to all parties and any person or organization who may have an interest in the request. While I have concerns about the late nature of the applicant’s RFOP and the applicant’s failure to provide notice to the parties he proposes be added as respondents, I allowed the applicant in his oral submissions to reference all alleged facts and details, as well as any information about the potential respondents, he felt he needed to support his position that there is a link between the alleged conduct and his ethnic background, religion and age. In light of this approach, it was not necessary for me to determine the applicant’s requests to amend the Application and add respondents for the purposes of the summary hearing.

11The request for production also did not require early disposition in order to consider the summary hearing issue of whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect of success. It was understood that the applicant believes there is information about the demographics of residency candidates which could possibly be generated by the proposed respondents. During the Summary Hearing, the applicant was free to refer to this potential evidence and make his arguments on how any such information may support his Application.

12The applicant signed a confidentiality agreement as part of the respondent Program’s interview process. Based on my review of the confidentiality agreement, it appears that the applicant is restricted from disclosing “aspects of the interview session”. The Governing Council took the position that, in order to elaborate on what he believed was discriminatory, the applicant should not precluded from revealing information about the interview process. In view of the Governing Council’s consent, I permitted the applicant to discuss information with respect to aspects of the interview sessions to support his allegations of discrimination. Given that the purpose of the confidentiality agreement is to maintain the integrity of the interview process, I believe this objective can be protected by including only a general description about the interviews in this Decision. While this Decision includes only broad descriptions of the interview process, I have fully considered all the details and facets of the applicant’s allegations in regards to the impugned interviews.

13In sum, in light of my finding that the Application must be dismissed because there was no evidence of any link between the impugned activity and a prescribed ground for discrimination and, hence, no reasonable prospect of success, it was not necessary for me to formally decide all the preliminary requests, although request (b) was granted and the applicant spoke freely about his concerns and potential information as related to requests (a), (c) and (d).

DECISION

14In the Summary earing, the applicant was given the opportunity to describe his allegations, the evidence he has and/or seeks, and to explain how this evidence could establish a link to a prohibited ground of discrimination. The applicant did not adduce any evidence that demonstrated a link between what he believed to be offensive treatment to the prohibited grounds of ethnic background, creed and age.

Summary of Allegations & Evidence

15The applicant applied for a residency position on three separate occasions through the respondent Program from 2007 to 2010 and was rejected on each occasion. The applicant asserts that it is apparent from his curriculum vitae that he originates from the Middle East and that it is also evident from his name that he is Muslim.

16The applicant contends that it can reasonably be concluded that he was discriminated against on the basis of his ethnic background and religion because he was equally or more qualified than successful Canadian candidates who studied abroad or successful American candidates. The applicant believes he must be more qualified because he has considerable clinical experience and excellent marks.

17The applicant submitted that the CARMS’s 2011 statistics indicate that only 43 out of 335 Middle Eastern candidates were accepted for residency placement in the entire country. The applicant suggests these statistics establish systemic discrimination, which he believes underlies his experiences of direct discrimination.

18The applicant’s allegations with respect to his personal experiences in each of the three impugned interviews are described below. The individual interviewers were different for each interview.

19In the 2007-8 match, the applicant was invited to participate in an interview in London, Ontario. The applicant indicates that he was well prepared and had lots of confidence. The applicant asserts that the behavior of the interviewers demonstrated that they were uninterested in his answers to the questions they posed. The applicant alleges that the male interviewer was rotating on his stool non-stop and playing with a pen in his mouth. The applicant perceived this to be rude. The applicant alleges that the female interviewer spoke to him in a sarcastic way when she asked him if he was certain about something. The applicant alleges that the interviewers exchanged looks and appeared to disbelieve his responses. The applicant claims that he must have been discriminated against since he was not matched into a position.

20In the 2008-9 match, the applicant was invited to participate in an interview in Ottawa, Ontario. The applicant indicates that he was ready for the interview. The applicant alleges that the interviewers seemed completely disinterested to his responses and were looking off into space. The applicant alleges that the female interviewer was playing with her pen and did not write anything down. The applicant perceived this to be humiliating. The applicant claims that the interviewers had “sarcastic smiles” on their faces. The applicant believes that the interviewers wanted to finish his interview without paying attention to the content of his answers. The applicant alleges that he must have been discriminated against since he was not matched into a position.

21In the 2009-10 match, the applicant was, once again, invited to participate an interview in Ottawa. The applicant indicates that he was very well prepared since this was his third interview. The applicant alleges that he was insulted because the interviewers interrupted him when he was providing an explanation. The applicant alleges that the interviewers seemed disinterested to his responses. The applicant alleges the interviewers’ body language was very negative. For example, one interviewer moved his head in such a manner as to indicate that he did not care. The applicant asserts that he must have been discriminated against since he was not matched into a position.

Analysis

22Rule 19A of the Tribunal’s Rules states that the Tribunal may hold a summary hearing, on its own initiative, or at the request of a party on the question of whether whether the Application should be dismissed in whole, or in part, on the basis that there is no reasonable prospect that the Application, or part of the Application, will succeed.

23In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing:

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 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.

24I find that the applicant was unable to identify evidence that he has, or that may be reasonably available, that demonstrates a nexus to the Code-protected grounds and how he was treated as alleged in his Application. As such, the applicant’s arguments and evidence did not indicate that his Application has a reasonable prospect of succeeding.

25Although in his oral submissions the applicant did not address the ground of age and focused primarily on ethnic background, the applicant originally filed his Application to include an allegation of age discrimination. In his Application, the applicant indicated that he was subjected to age discrimination because the selection criteria mentioned “ of graduation” which the applicant contends in the field of medicine means age.

26Other than this bald allegation, the applicant did not specify or articulate any concerns or incidents which revealed how, when, why and on what basis the alleged negative treatment was connected to his age. The applicant provided no details to support his claim that by seeking a medical resident’s date of graduation the Program engaged in age discrimination. In the absence of any substantive details of the allegation and the lack of any supporting evidence, I find that generally there is nothing improper about a prospective employer requiring a candidate to indicate the candidate’s date of graduation.

27The applicant was also requested to clarify the nexus between the comments and actions during the interview process that he alleged to be discrimination and the other Code grounds. The applicant clearly feels that he has been treated unfairly, but he did not explain how the alleged mistreatment occurred in connection to the Code grounds of race, colour, place of origin, ethnic origin and creed. Aside from making speculative claims that he was rejected because of his ethnic background and religion, the applicant did not explain how the alleged remarks and behaviour of the various interviewers were in any way connected to these Code grounds. The applicant did not highlight any details or evidence that would suggest, even remotely, that the alleged comments or conduct were related to the Code.

28All of the conduct the applicant complained about appeared to be in respect of mannerisms of speech and posture which the applicant perceived to be insulting. The applicant repeatedly stated that he believed he was discriminated against because the “body language” of the interviewers was “very bad” because the interviewers appeared to be disinterested.

29While there is no doubt that tone and bodily gestures can be communicative of either favourable or unfavourable reaction or attitude, the applicant was unable to point to any specific remark or action that could objectively be considered as negative and a reasonable basis for his suspicions of discrimination. There was no evidence of any differential or disadvantageous treatment or indicia of prejudice from the applicant’s description of the interviewers’ body and speech mannerisms. The applicant appears to suggest that the interviewers’ lack of interest in his answers was tantamount to discrimination. Even if the alleged conduct of each of the interviewers was rude, I do not find that there is any reasonable prospect that the applicant will be able to link the impugned behaviour to the Code grounds.

30Having carefully considered the evidence and the parties’ submissions, I find that the applicant did not identify any treatment or highlight any evidence to indicate that his ethnic background, religion or age were factors in his interview experiences.

31While the applicant points to statistics which suggests that in 2011 only 12.8 % of Middle Eastern residency candidates were matched throughout Canada, I do not find this to be cogent and persuasive evidence in support of the applicant’s concerns that he was subjected to discrimination given the nature of his particular allegations of alleged rude behaviour by three different sets of interviewers. Further, I agree with the Governing Council that these statistics cannot be considered in isolation. The same statistics reveal that candidates from African and Asian regions were matched at a lower rate than Middle Eastern candidates. I do not accept that the CARMS’s statistics buttress the applicant’s claims and reject that the statistics signal that the applicant must have been subjected to discrimination in his interview processes.

32However, even if any assumptions or inferences of less favourable treatment could be drawn from these statistics, I find that the statistics do not constitute sufficient evidence to convince me that the applicant’s Application has a reasonable prospect of success if it was to proceed to a full hearing. I find that the applicant has put before the Tribunal only bare allegations of mistreatment with virtually nothing other than suspicions and conjecture to suggest that the impugned behaviour during the three interview processes were connected to Code grounds.

33The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in specific areas (for example, employment, housing, contracts, etc.) on the basis of specific protected grounds listed in the Code (for example, disability, gender, race, etc.). The Tribunal does not have a general power to inquire into claims of unfairness, or as in this case behaviour that is perceived to be rude or insulting, outside of the grounds listed in the Code. For example, in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, the Tribunal stated at para. 17:

For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

34In conclusion, the applicant has not demonstrated that there is a reasonable prospect that any evidence he has, or that is reasonably available to him, can show a link between the alleged mistreatment and Code grounds.

CONCLUSION

35For the reasons stated above, there is no reasonable prospect that the Application will succeed. As such, I do not need to consider the other preliminary matters of delay, amendments and production.

36Accordingly, the Application is dismissed.