Minoo v. Ontario Family Medicine Residency Program, 2013 HRTO 99

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amir Houssein Minoo Applicant

-and-

Ontario Family Medicine Residency Program Respondent

RECONSIDERATION DECISION

Adjudicator: Ena Chadha Date: January 21, 2013 Citation: 2013 HRTO 99 Indexed as: Minoo v. Ontario Family Medicine Residency Program

WRITTEN SUBMISSIONS

Amir Hossein Minoo, Applicant ) Sharan K. Basran, Counsel

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.

2Following a summary hearing, the Tribunal issued a Decision dismissing the Application as having no reasonable prospect of success. This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal's Decision, 2012 HRTO 779, dated April 17, 2012.

3In this Reconsideration Decision, as well as the previous Decision, the cited grounds of race, colour, place of origin and ethnic origin have been described collectively as "ethnic background".

BACKGROUND

4The applicant self identifies as a Middle Eastern (Iranian) Muslim medical doctor.

5From 2007 to 2010, the applicant applied three times for a family medical residency position as an International Medical Graduate ("IMG") through a matching service operated by the respondent entity, Ontario Family Medicine Residency Program ("Program"). The Program is an unincorporated committee of six different Ontario family medicine residency programs, which processes applications of candidates seeking admission into the various residency programs.

6The Application alleges that, notwithstanding his excellent qualifications and examination scores, the applicant was rejected on three separate occasions for residency positions in London and Ottawa. The Application alleges that, in each of the three admissions interviews, the applicant was subjected to body language and comments which he perceived to be insulting and believed to be a form of discrimination because of his ethnic background, religion and age.

7The Application named 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 filed a Response (Form 2) because the Application was delivered to its representative.

8In its Response, the Governing Council requested that the Application be dismissed because the respondent Program is not a legal entity, but rather a steering committee of the six family medicine residency programs, and because the facts as pled in the Application do not describe prohibited conduct under the Code. The Governing Council also raised the issue of delay asserting some of the allegations were untimely as per section 34(1) of the Code.

9By 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 Tribunal notified the parties that a conference call summary hearing was scheduled for December 6, 2011.

10On November 23, 2011, the applicant filed a Form 10 Request for an Order During Proceedings ("RFOP") making several requests and appending written submissions. The applicant requested the following:

(a) Permission to name additional 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 was subject to a confidentiality agreement;

(c) Permission to amend the Application to include additional facts supporting a link between the applicant not being selected and his ethnic background; and

(d) An order requiring the Governing Council and the 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 the applicant.

11The applicant did not forward his Form 10 RFOP and accompanying documentation to the proposed respondents and thereby failed to comply with Tribunal's Rule 19.2 which requires that RFOPs be delivered to all parties and any person or organization that may have an interest in the requests.

12On December 1, 2011, the Governing Council wrote to the Tribunal and the applicant advising that it took issue with the substance of the applicant's Form 10 submissions on the basis that the submissions essentially constituted an entirely new application. The Governing Council indicated that it would address this issue during the summary hearing. The applicant sent a reply stating the reasons he believed the issues raised in his RFOP were not new.

13A conference call summary hearing was held on December 6, 2011. The applicant and counsel for the Governing Council participated on the call.

14On April 17, 2012, the Tribunal issued its Decision dismissing the Application as having no reasonable prospect of success on the basis 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.

RECONSIDERATION REQUEST

15Rule 26.5 of the Tribunal's Rules provides that a request for reconsideration will not be granted unless the Tribunal is satisfied:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

16The applicant relies on Rules 26.5 (a), (c) and (d) as a basis for seeking reconsideration. The applicant submits that the Decision should be reconsidered because: (i) the Tribunal breached procedural fairness when it did not consider the applicant's written submissions and, rather, required the applicant to state his case in oral submissions; (ii) the Tribunal did not address the various interrelated claims raised by the applicant's RFOP; (iii) the Decision is in conflict with established jurisprudence and the test in Shakes v. Rex Pax Limited (1981) C.H.R.R. D/100; and (iv) there is new evidence in the form of a report of an independent review of the Program which verifies the disproportionate effect of the Program's selection criteria.

17The Governing Council opposes the reconsideration request on the basis that the principle of finality of decisions is paramount. The Governing Council submits that the request should be denied because: (i) no extraordinary or compelling circumstances exist in this case for granting reconsideration; (ii) the Tribunal properly considered the applicant's written and oral submissions; (iii) the Tribunal applied the correct legal analysis and the applicant's arguments to the contrary are an attack on the merits of the Decision which is not an appropriate ground of reconsideration; and (iv) the independent review report pre-existed the summary hearing and therefore does not constitute new evidence. The Governing Council submits that the Tribunal did not breach procedural fairness and that the Decision correctly addressed all of the relevant issues.

DECISION

18For the reasons that follow, the request for reconsideration is granted in part.

19I find no valid basis to reconsider the Decision's conclusion that there was no reasonable prospect of success with respect to the applicant's direct discrimination allegations in relation to the three interviews and the allegations of age discrimination. Accordingly, I deny the applicant's request to reconsider those aspects of the Decision.

20However, I find that the Decision did not address the reasonable prospect of success of the Application in the context of the applicant's proposed amendments. The applicant's RFOP sought to raise systemic discrimination allegations with respect to the Program, the "recency of clinical practice" criteria and the alleged preferential selection of Canadian-born foreign trained doctors. As a result, I grant the applicant's request to reconsider the Decision and allow the Application to proceed in relation to those specific allegations only. My determination to allow partial reconsideration is not a reflection of the merits of the applicant's requests to amend or the merits of his allegations.

ANALYSIS

No Reconsideration Warranted

21First, I will briefly deal with the components of the Decision in relation to which I find reconsideration is not warranted.

22The Decision addressed whether or not there was a reasonable prospect of success to the applicant's allegations of direct discrimination during the three interviews, as well as the allegation of age discrimination with respect to the Program's "recency of graduation" selection criteria. I do not find that Rules 26.5 (a), (c) or (d) are triggered in relation to these aspects of the Application.

23There is no dispute that the applicant's original materials detailed his allegations about the three interviews. There is also no dispute that during the summary hearing the applicant discussed and elaborated upon his concerns regarding the interviewers and why he perceived their conduct to be discriminatory. In fact, the applicant's reconsideration submissions expressly note that at the summary hearing, the applicant "described in detail what happened for each of the three interviews he attended". The reconsideration request further confirms that the applicant's description focused on what he believed to be rude, disinterested or inappropriate behaviour.

24The Tribunal assessed the applicant's allegations regarding the interviews and, based on his written and oral submissions, found there was no reasonable prospect of success. In addition, the Decision determined that there was no reasonable prospect of success regarding the applicant's allegations of discrimination in failing to be selected for a residency position compared to other foreign trained doctors. The Decision considered the applicant's submissions regarding his ranking and the statistical evidence relied upon by the applicant which indicated that, in 2011, 12.8 % of Middle Eastern residency candidates were matched throughout Canada. The Tribunal found that the same statistics revealed that candidates from African and Asian regions were matched at a lower rate than Middle Eastern candidates. The Tribunal rejected the proposition that the statistics signaled that the applicant was subjected to direct discrimination in the selection process.

25The Decision also canvassed the applicant's allegations of age discrimination, in particular with respect to the selection criteria of "recency of graduation". The Decision noted that, other than the bare allegation, the applicant did not point to any evidence regarding this matter, nor explain the how any of the alleged negative treatment was connected to his age.

26I do not accept the applicant's contention that a breach of procedural fairness occurred in the Tribunal's handling of the applicant's written and oral submissions. The applicant's allegations regarding direct discrimination both in writing and orally were thoroughly reviewed. As reflected in the Decision, the applicant was able to speak freely about his allegations and what he believed the anticipated evidence could show. Further, I find there are no factors or circumstances raised by the applicant's request to support reconsideration of the allegation of age discrimination. As such, there is no basis to reconsider the Tribunal's findings regards to direct discrimination and age discrimination.

27The applicant submits that the Tribunal's Decision is in conflict with established jurisprudence in that the Tribunal failed to recognize that the evidence adduced by the applicant satisfied the Shakes test and instead required the applicant to produce overt evidence of discrimination.

28In Zhao v. Toronto Community Housing Corporation, 2012 HRTO 2187, the Tribunal emphasized that in considering whether an applicant's allegations of discrimination in hiring have no reasonable prospect of success, the Tribunal should not rigidly apply the Shakes test, but rather looks at the full context and the parties' theories of the case.

29In this case, the Tribunal undertook an analysis of the applicant's proposed evidence in considering his allegations that he was unfairly denied a residency position. The Tribunal determined that there is no reasonable prospect of success based on the fact that the applicant put before the Tribunal only bare allegations and conjecture to link the impugned behaviour that he perceived to be discriminatory.

30The Tribunal in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, has stated that reconsideration is not an opportunity to re-argue a case and once a decision is made disposing of the issues parties are entitled to treat the matter as closed. In the instant case, a decision was made having fully considered the applicant's arguments and proposed evidence regarding the viability of the direct discrimination allegations.

31The applicant also seeks reconsideration of the Decision on the basis that there is now new evidence that purportedly supports his case. I note that the Governing Council challenges the applicant's claim that the independent review report is new evidence. While the applicant contends the report was not publically available until February 2012, the Governing Council points out that the report is dated September 2011. Notwithstanding the dispute regarding the date of the report and whether it could have been obtained prior to the summary hearing, I find that the report does not meet the fairly high test required under Rule 26.5(a) which requires a party to show the new evidence "could potentially be determinative of the case". Albeit extensive in its research and drawing forth certain linkages that may possibly buttress the applicant's position, the report is not potentially "determinative" of the issue of whether the Program is directly or systemically discriminatory.

32The Tribunal's Practice Direction on Reconsideration states "[r]econsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case". I do not find the Decision to be in conflict with established jurisprudence and the new evidence proffered by the applicant is not dispositive of an issue. Given that the applicant's written material with respect to the three interviews and age discrimination was assessed and the applicant fully exercised his opportunity to present oral submissions in this regard, there are no grounds to reconsider the Tribunal's conclusions these matters. As such, the Decision stands as it relates to the applicant's allegations of direct discrimination regarding the three interviews and the allegations of age discrimination.

Reconsideration Allowed

33I find that it is appropriate to reconsider my Decision to dismiss the Application in relation to the applicant's RFOP to amend on the basis that the original Decision did not address the systemic discrimination allegations made by the applicant and that this failure outweighs the public interest in the finality of Tribunal decisions. I acknowledge that the Decision did not consider the applicant's allegations of systemic discrimination and proposed evidence in reference to the case he was seeking to bring as reflected by his RFOP, the proposed amendments and the accompanying written submissions. As such, I set aside my Decision only to the extent that it dismissed the Application with respect to the proposed allegations of systemic discrimination raised in the applicant's RFOP.

34The applicant's reconsideration submissions state that the original Application was "poorly drafted and not completely comprehensible requiring a clearer articulation and explanation for how [the applicant] was claiming discrimination and a nexus to the prohibited grounds". The applicant submits that his RFOP attempted to clarify the multifaceted nature of the alleged discrimination and that the Tribunal's Decision failed to address the applicant's claims in the context of the proposed amendments.

35Based on a review of the applicant's materials, it appears that the RFOP did in fact allege concerns of constructive discrimination as a result of the Program's small number of positions for IMGs compared to Canadian trained doctors and constructive discrimination experienced by IMGs based on the selection criteria of "recency of clinical experience" compared to Canadian-born foreign trained doctors. These issues were not canvassed in oral submissions, nor addressed by the Decision.

36I accept the applicant's position that the circumstances of this case are akin to Marshall v. Lakeridge Health Corporation, 2010 HRTO 2107, wherein the Tribunal's decision to dismiss was reversed following reconsideration because the Tribunal recognized that it failed to address an issue of whether the Application set out a prima facie case of discrimination regarding a specific Code ground.

37While I appreciate the Governing Council's concerns regarding the extraordinary standard for reconsideration and the principle of finality, in the particular circumstances of the Decision's lack of attention to the nuances of the applicant's proposed systemic allegations and the anticipated evidence in that regard, I am satisfied I should exercise my discretion to reconsider the decision dismissing the Application. I do not find that the applicant is attempting to repair or reargue the case in regards to the alleged constructive discrimination pertaining to the Program's number of positions for IMGs compared to Canadian trained doctors and constructive discrimination related to the selection criteria of "recency of clinical experience". In my view, the fact that the Decision did not consider the applicant's case in the context of these issues outweighs the public interest in the finality of Tribunal decisions.

38I reiterate that the all matters of direct discrimination and age discrimination as addressed in the Decision remain dismissed and that the reconsideration is granted only with respect to the applicant's proposed amendments and systemic allegations as raised in the RFOP.

ORDER

39For the reasons stated above, the applicant's request to reconsideration is granted in part. The Tribunal orders as follows:

i. The Application will proceed in the Tribunal's process only with respect to the proposed amendments and systemic allegations raised in the applicant's RFOP;

ii. The applicant is required, within two weeks of the date of this Reconsideration Decision to deliver all Tribunal materials, including the Application, accompanying documentation, Response, any correspondence from the Tribunal and the parties, RFOP, submissions, the previous Decision and this Reconsideration Decision, etc., to the proposed respondents and the Ontario Family Medicine Residency Program;

iii. The applicant is required to write to the Tribunal, copied to the Governing Council, confirming that the materials noted in (ii) were delivered;

iv. The Governing Council, the Ontario Family Medicine Residency Program and the proposed respondents are required to file with the Tribunal, copied to the applicant, a response to the applicant's RFOP within six weeks of the date of this Reconsideration Decision;

v. The Governing Council, the Ontario Family Medicine Residency Program and the proposed respondents are required, along with their responses, to indicate if they agree to participate in mediation; and

vi. The Tribunal will consider the submissions, and may determine any of the issues set out above based on the submissions, and/or may schedule future steps accordingly.

40I am not seized.