Elfetouh v. The Governing Council of the University of Toronto, 2015 HRTO 1318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ziad Abou Elfetouh

Applicant

-and-

The Governing Council of the University of Toronto

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 5, 2015

Citation: 2015 HRTO 1318

Indexed as: Elfetouh v. The Governing Council of the University of Toronto

WRITTEN SUBMISSIONS

Ziad Abou Elfetouh, Applicant

Self-represented

The Governing Council of the University of Toronto, Respondent

Sari Springer, Counsel

Introduction

1This Application alleges discrimination with respect to employment, although the relationship between the applicant and the respondent may actually be services, not employment. The applicant alleges discrimination because of race, colour, citizenship, ethnic origin and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is an Internal Medicine Graduate (“IMG”). He used the standard matching service operated by a national company called the Canadian Residency Matching Service (“CaRMS”), but was not matched for the respondent’s Internal Medicine Residency Program in 2014.

3The purpose of this Interim Decision is to address the applicant’s request for the production of documents.

Request for production

4The applicant filed a Request for Order During Proceedings to obtain a series of documents, some of which the respondent has since produced, and some of which the respondent claims that it does not have or that are privileged. On September 29, 2015, the applicant clarified that he continues to seek the following:

a. The percentage and number of Canadian citizen IMG applicants who studied abroad versus the percentage of foreign/immigrated IMGs who were offered interviews for the Internal Medicine Program in 2014;

b. The percentage and number of Canadian citizen IMGs who studied abroad versus the percentage of foreign/immigrated IMGs who were offered positions for the Internal Medicine Program in the last five years; and

c. The credentials, graduation year and medical school of IMGs who were offered interviews for the Internal Medicine Program in 2014.

5The applicant asserts that the documents he requests will show how the respondent allocated and reserved positions for Canadian citizens who studied abroad, as opposed to non-Canadian citizens who studied abroad.

6Initially, the respondent’s position was that the personal characteristics of IMG’s applying for their Internal Medicine Residency Program, including the applicant’s personal characteristic related to the alleged grounds of discrimination, were not identified in the documents forwarded by CaRMS to the respondent, let alone considered by the respondent. In particular, the respondent stated that they were not aware of the applicant’s citizenship when they decided not to interview him for a position.

7More recently, the respondent amended their position, and now state that while the citizenship of the applicant was not known to the people considering his application, the respondent has become aware that it retains application materials received from CaRMS for applicants who were successfully matched into the program, and those materials include copies of passports or permanent residency cards in order to confirm proof of eligibility to work in Canada, and to satisfy requirements of the Ministry of Health and Long Term Care and the Ministry of Colleges, Training and Universities relating to funding and to reporting. The respondent is not clear as to why it now has access to copies of passports or permanent residency cards, but did not have access at the time it was considering applications.

Request a): The percentage and number of Canadian citizen IMG applicants who studied abroad versus the percentage of foreign/immigrated IMGs who were offered interviews for the Internal Medicine Program in 2014

8The respondent states that it does not have documents which can address this request because it did not retain the CaRMS applications with their copies of passports or permanent residency cards which would enable the respondent to now identify the citizenship for those who were interviewed but not accepted. The respondent did retain the documents for those who were accepted, and provided the information that 13 of the 14 accepted are Canadian citizens.

Request b): The percentage and number of Canadian citizen IMGs who studied abroad versus the percentage of foreign/immigrated IMGs who were offered positions for the Internal Medicine Program in the last five years

9The respondent argues that this information is not relevant to the allegation that the applicant applied for the program in 2014 only, and the request with respect to the last five years should be denied.

Request c): The credentials, graduation year and medical school of IMGs who were offered interviews for the Internal Medicine Program in 2014

10The respondent states that gathering the information required for all those interviewed would be unfairly onerous, and it argues that this information is also irrelevant because the IMGs who received the positions are the appropriate comparator group, not the larger pool of those who were interviewed. The respondent agreed to provide the credentials, graduation year and medical school of IMGs who obtained the positions.

decision

11I agree with the respondent that the relevant year is 2014. I deny the applicant’s request for information pertaining to the matching process in previous years because he had not applied for the Program in those years, and had not been rejected.

12With respect to the request for information on IMG applicants who had been offered interviews, but were unsuccessful in obtaining a position, I am not prepared to order the production requested at this stage of the proceedings. The request may be renewed after the applicant and the respondent’s witnesses have testified, and, depending on the evidence with respect to the strength of the applicant’s candidacy versus the strength of those who obtained positions, I may order that information be produced pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure.

direction

13At the commencement of the hearing, the Tribunal will offer mediation-adjudication to the parties. If the parties do not wish to try mediation-adjudication to settle this matter, or if it does not resolve the Application, then the Tribunal will deal with any outstanding preliminary issues.

14Also, should mediation-adjudication not succeed in resolving the Application, the Tribunal will invite submissions on allowing the respondent to present its case before the applicant presents his. This would mean that the respondent would have its witnesses testify first, including its witnesses being cross-examined by the applicant, and then the applicant would testify, and be cross-examined by the respondent.