Zafar Sultan v. Islamic Foundation of Toronto, 2013 HRTO 1314

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zafar Sultan Applicant

-and-

Islamic Foundation of Toronto Respondent

A N D B E T W E E N:

Islamic Foundation of Toronto and Syed Shah Quadri Applicants

-and-

Zafar Sultan Respondent

DECISION

Adjudicator: David Muir Date: August 15, 2013 Citation: 2013 HRTO 1314 Indexed as: Sultan v. Islamic Foundation of Toronto

APPEARANCES

Zafar Sultan, Applicant in 2012-12456-S and Respondent in 2012-12771-S Self-represented

Islamic Foundation of Toronto and Syed Shah Quadri, Applicants in 2012-12771-S; Islamic Foundation of Toronto, Respondent in 2012-12456-S Shahzad Siddiqui, Counsel

1These are two Applications filed under section 45.9 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement.

2The Applications relate to the same settlement reached in a prior Application before the Tribunal. The applicant in 2012-12456-S alleges that contrary to the Minutes of Settlement (MOS) two or more officials of the Islamic Foundation of Toronto (“Foundation”) used abusive language with him. In 2012-12771-S the Foundation allege that the applicant breached the confidentiality provisions of the settlement.

3As these Applications relate to the same settlement and arise out of the same interactions on the evening of August 18, 2012 the Tribunal directed, in a Case Assessment Direction issued on November 2012, that they proceed together.

4A hearing was held on May 22, 2013 in Toronto in respect of both of these cases. I heard from the applicant in 2012-12456-S who was also the applicant in the prior Application which resulted in the MOS in issue in this case (the “applicant”). I also heard the evidence of the personal applicant in 2012-12771-S as well as Syed Akbar Warsi and Yusef Badat. An Urdu interpreter was available to assist one or more of the witnesses although for the most part the witnesses all were conversant in the English language.

5The allegations made by the parties in these corresponding applications for breach of settlement are essentially mirrors of each other. The applicant alleges that he was disparaged by the officials of the Foundation contrary to the MOS and that officials of the Foundation breached the confidentiality provision of the MOS. The respondent makes the same allegations.

6The MOS provided for amongst other things the following:

4. The parties agree not to disparage each other in any way or make any negative comments about each other.

7The confidentiality provision provided as follows:

5. The parties agree to maintain the strict confidentiality of these Minutes of Settlement.

8The allegations of both parties involved a brief interaction between the applicant and officials of the respondent on the evening of August 18, 2012

9The applicant described the interaction as follows. He claims that the personal respondent told him he was a bad person for having launched the human rights application. The applicant also contends that Mr. Quadri who was apparently sitting beside Mr. Warsi stated to everyone who was present that the applicant also “claimed money from the Foundations and also collected money.” The applicant alleges that Mr. Warsi then asked how much the applicant had asked for. The applicant alleges that after that Mr. Warsi turned to him and asked him why he had demanded money and asked how much had he received. He then said that the applicant was a bad person and should not have done that and that people would be angry with them if they found out. The applicant also claims that despite his effort to end the conversation the respondent Warsi would not.

10The Foundation alleges that the applicant began the interaction saying on two occasions that the respondents did not understand him and pointing to his skin indicating his skin colour. The two personal respondents testified that they understood the applicant to be suggesting that they did not understand him because he was Pakistani. They also allege that he revealed some of the terms of the MOS to a third party.

11The Applications are both dismissed. Although the applicant gave a generally credible description of the conversations in which he engaged there were also some minor inconsistencies in his version of the conversation when challenged about it, for example the precise time that the discussion is alleged to have taken place and why he would continue to serve the respondents if he was so upset. On the other hand the three witnesses for the respondent all denied participating in or hearing the conversation described above.

12Mr. Warsi described a conversation between himself and the applicant in which the applicant described how he was treated differently and by inference better by a new congregation than he had been at the Foundation. Mr. Warsi testified that he disagreed with the applicant and that they had a pleasant and polite discussion. The applicant agrees that the conversation was polite.

13All of the witnesses appeared to be attempting to provide their accurate recollection of the discussion. I prefer the evidence of the respondents for a number of reasons. First although given in a more or less coherent manner, the applicant’s evidence was somewhat vague. He did not describe the surrounding circumstances in any detail and his evidence departed from the narrative in the Application in some minor ways that cast some doubt on his version of events. He also, when challenged, changed his evidence about the timing of the conversation in the course of a very brief dinner. None of these defects in his evidence would be critical except in contrast with the evidence of the three other witnesses each of whom gave a credible description of the evening. Each denied hearing or participating in the conversation as described by the applicant. There is no basis to question their recollection of the conversation. Despite the applicant’s apparent sincere belief that the remarks above were made and that they constitute a breach of the MOS I am unable to find that the applicant has met his burden of proof to establish that the remarks were made. For these reasons Application 2012-12456-S (of the applicant) is dismissed.

14As regards the Application filed by the Foundation there is no evidence that the applicant breached the confidentiality provision of the MOS. The respondents relied on the applicant admitting that he discussed his Application with a third party, but I note that there was no content to his admission – that is I have no evidence to indicate that the applicant disclosed any of the terms of the MOS to anyone at any time.

15As regards the alleged disparagement, the respondents assert that he disparaged them when he told them twice that they had not understood him because he was Pakistani and that in conversation with Mr. Warsi he indicated that he felt better treated by another Islamic congregation than he had at the Foundation. In the particular circumstances of this case I find that this is not in breach of the MOS. Not every conversation between former litigants about their continuing disagreements will run afoul of the kind of provision the parties agreed to above, which are more intended to prevent public comment about the other side, than necessarily prevent conversation between the parties after a settlement. That said it was clear that one of the concerns of the respondents was that the applicant puts himself in positions to engage with them on his ongoing concerns with the respondents. In this regard I have made my determinations of this issue based on the evidence I have heard, this does not preclude a different conclusion should there be evidence of an ongoing effort on the part of the applicant to continue to engage the respondent on these issues.

16For these reasons the Application filed by the Foundation is dismissed as well.