Abdzadeh v. Ryerson University, 2015 HRTO 1390

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Seyed Mehdi Abdzadeh

Applicant

-and-

Ryerson University

Respondent

DECISION

Adjudicator: Kevin G. Cleghorn

Date: October 19, 2015

Citation: 2015 HRTO 1390

Indexed as: Abdzadeh v. Ryerson University

Seyed Mehdi Abdzadeh, Applicant

Self-represented

Ryerson University, Respondent

Giselle G. Basanta, Counsel

Introduction

1This is an Application brought under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging reprisal or threat of reprisal and discrimination on the basis of age in the provision of goods service and facilities. Although the Application does not specifically include it, the applicant alleged the additional ground of discrimination on the basis of age in the narrative of the facts and circumstances supporting his complaint.

2By Case Assessment Direction dated May 13, 2015, the Tribunal directed that a summary hearing be held in this matter by teleconference. It states as follows at paragraphs 1 and 9 (in part):

Having reviewed the materials filed in this Application, the Tribunal directs, on its own initiative, that a summary hearing be held to determine whether this 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.

The Tribunal will hear the parties’ arguments about whether the Application should be dismissed as having no reasonable prospect of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

ANALYSIS

Summary Hearings

3Rule 19A of the Tribunal’s Rules of Procedure reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.

4The test on a summary hearing is whether an application, in whole or in part, has no reasonable prospect of success. If the applicant is unable to point to any evidence or any evidence that may be reasonably available to the applicant which tends to support his belief that he has experienced discrimination or reprisal under the Code, the Application will be dismissed as having no reasonable prospect of success. If some or all of the allegations are not dismissed at this stage, the Application will continue in the Tribunal’s process and might be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

5In Dabic v. Windsor Police Service 2010 HRTO 199 at paras. 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

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 the 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.

BACKGROUND

6The applicant applied to Ryerson University on December 14, 2013, seeking admission as a full-time student in the Ted Rogers School of Management business law program. He states he was contacted by a staff person at Ryerson University who advised that he should change his application from a full-time to a part-time student. The applicant’s understanding was that his grade point average was sufficient for admission as a part-time student but not as a full-time student. The applicant amended his application for enrollment to that program accordingly. Notwithstanding the change to his application, the applicant was informed on August 19, 2014 that he was denied admission to the program as a part-time student.

7Later on August 19, 2014, the applicant e-mailed Ryerson University advising that he would commence a legal action against it for not admitting him to the program. He had communication with various unnamed staff persons at Ryerson University on August 19, 2014; he understood from those conversations that the reason he was not admitted to the program related to the type of advanced diploma that he had been awarded by Seneca College. The applicant replied that he understood his grade point average was satisfactory to be admitted to the program and that there were no other criteria outlined in the admission policy. As such, he insists that he should not have been refused admission. He states that he has never received a satisfactory answer concerning the basis on which he was refused admission to the program subsequent to his e-mail advising that he would commence legal action against Ryerson University.

8The applicant commenced legal action against Ryerson University in the Superior Court of Justice. He claimed general damages of $1,000,000.00 and punitive damages of $1,000,000.00, amongst other relief. The Statement of Claim, alleging negligence on the part of Ryerson University, was struck without leave to amend by the Superior Court of Justice on January 26, 2015. This Application was commenced by the applicant on February 10, 2015.

9The applicant asserts in this Application that the reason he was not admitted to the program was based upon his age and/or amounted to a form of reprisal by the respondent when he suggested in his email of August 19, 2014 that he would be pursuing his legal rights. He maintains that a number of his friends have made similar complaints about Ryerson University denying them admission to various programs on account of their age.

THE LAW

10The Application and the applicant’s submissions have no particulars of any differential treatment on the basis of age or reprisal per se. The argument of the applicant is essentially that there can be no other basis for his denial of admission but his age or as a form of reprisal. Similarly, his view is that any treatment that he received from the respondent must be discriminatory because it did not meet his expectations in terms of his eligibility for admission into his program of choice. It should be noted that nowhere in his Application or in the course of his argument did the applicant ever disclose his age.

11For the purposes of a summary hearing or a hearing on the merits of an Application, It is not sufficient to make bald assertions to establish discrimination or differential treatment: see Sosoo v. Winners Merchants 2010 HRTO 1367; Jagait v. IN TECH Risk Management 2009 HRTO 779; and Howard v. 407 ETR Concesssion 2011 HRTO 1511. Despite the belief of the applicant, the onus is on him to establish that there is some evidence, or evidence that may be reasonably available to the applicant, to support his allegations of discrimination or reprisal: see Sosoo v. Winner’s Merchants at paras. 66-67 and Howard v. 407 ETR Concession at para. 13. The threshold for establishing a reasonable prospect of success at the summary hearing stage may be a low one but, ultimately, there must be some evidence upon which the Tribunal can find that the applicant was discriminated or reprised against, and that the discrimination or reprisal is linked to a prohibited ground under the Code: see Sosoo v. Winner’s Merchants at para. 71 and Howard v. 407 ETR Concession at para. 17.

12In this case, as opposed to merely insufficient, ambiguous or general evidence being submitted in this matter by the applicant, there is an utter absence of any proposed evidence of discrimination or reprisal whatsoever, either direct or circumstantial. There were no allegations that could form the basis for establishing a Code violation, beyond mere conjecture or speculation on the part of the applicant. His denial of admission to the program may not have included, from his perspective, a satisfactory explanation by the respondent. However, that does not lead to the conclusion that discrimination is involved in the admission process in the absence of some evidence to demonstrate that a prohibited ground under the Code was a factor in the admission decision. Indeed, in this case there is no evidence, or any evidence that may be reasonable available to the applicant that could link a prohibited ground under the Code with the treatment afforded to him by the respondent in the course of the admission process.

13As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. 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.

14The Tribunal also does not have the general power to decide whether the respondent treated the applicant fairly and appropriately: see Tubquabo v. University of Ottawa 2010 HRTO 477 at para. 6. The applicant is unhappy about the decision to deny him admission into his preferred academic program. If anything, he has not been adequately informed about the basis of the decision. Notwithstanding that, it is clear that numerous academic programs involve selection criteria that may necessarily deny admission to innumerable worthy candidates.

15Section 8 of the Code provides as follows:

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 for so doing.

16In Noble v. York University, 2010 HRTO 878 at paras. 33 - 35, the Tribunal set out the test for reprisal, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

In assessing the claim in this case, several of the above principles are particularly apposite. First, a claim of reprisal must be in respect of an action or threat. Establishing only that a respondent was upset or angry that a complainant filed a complaint, or claimed a Code right, is not sufficient. Neither is it a reprisal to show simply that a respondent considered taking an action against a complainant. Evidence of anger or upset, or of an animus, may be relevant in establishing an inference that an action was taken with intent to reprise. However, in order for there to be a reprisal, there must be an actual action taken against the complainant, or threat made to the complainant.

17If I accept the facts as alleged in the Application, and based upon his submissions, I am unable to conclude that there is any evidence of a reprisal under the Code. The substantive decision which forms the basis of this Application is that the applicant was refused admission to the program that he sought to enter at Ryerson University. His indication that he intended to take legal action (a civil suit that did not contain any allegations of a breach of the Code) occurred after that decision. In addition, there is an absence of any evidence which supports the allegation that any staff person or representative of Ryerson University acted in any manner that could be construed as a form of reprisal in response to the applicant’s assertion of a Code right (which, in any event, was not raised in a direct manner until February, 2015). The applicant did not offer anything in the way of evidence to support a nexus between his allegations and a prohibited ground of discrimination and/or as a form of reprisal under the Code, despite the clear wording of the Case Assessment Direction and a reminder of his need to do just that at the outset of the summary hearing.

DECISION

17For all the foregoing reasons, I have concluded that there is no reasonable prospect that this Application can succeed. The Application is dismissed.