Omar Kalair v. Central 1 Credit Union, 2015 HRTO 1400

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Omar Kalair Applicant

-and-

Central 1 Credit Union Respondent

DECISION

Adjudicator: Mark Hart Date: October 21, 2015 Citation: 2015 HRTO 1400 Indexed as: Kalair v. Central 1 Credit Union

APPEARANCES

Omar Kalair, Applicant Olanyi Parsons, Counsel

Central 1 Credit Union, Respondent Melanie Warner, Counsel

1This is an Application filed with the Tribunal on April 14, 2014, alleging discrimination with respect to contracts, employment, housing and services because of creed, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By letter dated December 31, 2014, the Tribunal advised the parties that this matter would be scheduled for a full-day in-person hearing to consider whether the Application should be dismissed on the basis of delay. By Notice of Preliminary Hearing dated February 12, 2015, the preliminary hearing in this matter was scheduled to proceed on July 23, 2015.

3By Case Assessment Direction (“CAD”) dated July 2, 2015, the parties were advised that the preliminary hearing also would address the nature and scope of the Application and would hear submissions from the parties on the issue of whether the Application, or any part of it, should be dismissed as having no reasonable prospect of success.

4The preliminary hearing proceeded on July 23, 2015, and I heard oral submissions from the parties on the preliminary issues. I also have reviewed and considered the written submissions filed by applicant counsel for the purpose of the preliminary hearing.

Background

5The applicant was the President and Chief Executive Officer of UM Financial Inc. and UM Capital Inc. (referred to collectively as “UM”). UM offered mortgage and financial products to the devout Muslim community primarily in the greater Toronto area. UM offered Shariah-compliant mortgages, which allow for ordinary security and lending arrangements to be connected to and function in concert with recognized Islamic lending instruments. These instruments accommodate, among other things, the Islamic prohibition against charging or paying interest, and allow for the lender and the borrower to enter into a partnership instead of a strict debtor-creditor relationship.

6In 2005, the Credit Union Central of Ontario (“CUCO”) entered into a Shariah-compliant finance and security structure with UM and thereafter made loans to UM. In July 2008, all material assets of CUCO relevant to this proceeding were purchased by the respondent (“Central 1”). Central 1 is a central credit union, of which the majority of credit unions in Ontario and all credit unions in British Columbia are members. Central 1 is a regulated financial institution, with the principal role of acting as the central banker and liquidity manager for member credit unions.

7The respondent states that, in March 2011, UM was in default of its obligations to Central 1 in the amount of approximately $31.5 million. At that time, Central 1 applied to the Ontario Superior Court of Justice for a receivership order against UM under s. 243(1) of the Bankruptcy and Insolvency Act.

8The alleged default was disputed by UM, which initiated a civil action against Central 1 and CUCO in June 2011.

9On October 7, 2011, the Superior Court issued an order appointing a receiver over all of the assets and properties of UM. One day prior to this receivership order, UM sought to assign its interest in the civil action to a third party. By Court order dated May 11, 2012, the Court held that the civil action continued to be subject to the security interests granted to Central 1 and turned over the interest in the civil action to the receiver. Ultimately, Central 1 purchased the civil action from the receiver and caused it to be dismissed on September 25, 2012.

Nature and scope of the Application

10The instant Application to this Tribunal was filed by the applicant in the context of this conflict between UM and Central 1. Much of the content of the Application makes reference to events and allegations pertaining to the often fraught relationship between these corporate entities, many of which were raised in the civil action.

11As I noted in the CAD dated July 2, 2015, the instant Application has been commenced by the applicant as an individual person. This is not an application filed by UM, which the applicant would have no authority to commence in light of the receivership order. Nor has the applicant filed this Application on behalf of other persons pursuant to s. 34(5) of the Code, for which he would require the consent of any such other person. As a result, the only issue to be determined in this proceeding is whether the applicant’s personal and individual rights under the Code have been infringed by the respondent, as opposed to the rights of UM or other persons.

12In the CAD, I stated that it appeared from the materials filed in this proceeding that the applicant has raised only two allegations that his personal or individual Code rights have been infringed by the respondent: (1) there appears to be an allegation that the applicant’s personal compensation included favourable terms for his mortgage which are alleged not to have been honoured by the respondent (the “mortgage discharge allegation”); and (2) there appears to be an allegation that the respondent continues to use mortgage documents that originally were prepared by the applicant (the “mortgage documents allegation”). I noted that the former allegation appears to date back to 2012, some two years before the Application was filed, and that the latter allegation appears to be based on the respondent’s continuing use of these mortgage documents.

13I further indicated that it was not clear to me how the applicant is alleging any link between either of these two allegations and alleged discrimination against him by the respondent on the basis of his creed. I also noted that neither of these two allegations is clearly articulated in the Application, and have only emerged as a result of a close and careful review of the materials filed by the applicant. Rather, the Application itself and the alleged discriminatory incidents detailed in the applicant’s Reply all seem to focus on alleged discriminatory acts by the respondent against UM, which is not the applicant in this proceeding.

14As a result, I stated in the CAD that, at the outset of the preliminary hearing on July 23, 2015, I wanted clarification from the applicant regarding the specific bases upon which he is alleging that his individual and personal rights under the Code were violated by the respondent. I stated that I also wanted to hear from the applicant how he is making any link or connection between any such allegations and discrimination because of creed, and what evidence he would bring forward at a full hearing on the merits to establish any such alleged connection.

15On the basis of the written and oral submissions of the applicant and his counsel for the purpose of the preliminary hearing, it has been clarified that these are the two issues that are raised in the Application pertaining to the alleged violation of the applicant’s personal and individual rights by the respondent.

16I will address each of these allegations in turn.

The mortgage discharge allegation

17The applicant formerly resided with his now ex-spouse in a matrimonial home in Brampton. The title to the matrimonial home was solely in the name of the applicant’s ex-spouse. In June 2005, the applicant’s ex-spouse entered into a Shariah-compliant home financing agreement with UM, which was renewed at least in August 2007 and again in December 2009. The applicant’s signature appears on both of the latter two agreements (in addition to his ex-spouse’s signature), although he is not identified as a party to the agreement. The applicant states that he was a “guarantor” of the agreements, although there is no reference in the agreement to him having this status or any of the usual obligations attached to a guarantor. In the material before me, there also is a copy of a void cheque that appears to be drawn from the applicant’s bank account, which the applicant says is an indication that the payments under the home financing agreements were made by him.

18In July 2012, following the receivership order, the receiver assigned and transferred its interest, as receiver for UM, in the home financing agreement to the respondent. At the time, the applicant and his now ex-spouse were in the course of divorce proceedings and arrangements were being made for the sale of the matrimonial home, which required discharge of the security interest held by the respondent. By letter from the respondent to the ex-spouse’s solicitor dated August 2, 2012, the respondent offered certain concessions to the ex-spouse for the discharge, resulting in a total amount owing of $554,792.43 as of the date of the letter. Further correspondence and negotiations ensued between the respondent’s solicitor and the solicitor for the applicant’s ex-spouse, resulting in an offer by the respondent on August 9, 2012 to grant the discharge if the amount of $540,000 was paid by August 17, 2012. This was agreed to by the ex-spouse’s solicitor, as confirmed by her signature to the letter on August 9, 2012.

19Regrettably, the applicant’s ex-spouse did not pay the required amount by August 17, 2012. Instead, the ex-spouse’s solicitor requested an extension to August 24, 2012 to make the required payment. In response, by letter dated August 20, 2012, the respondent’s solicitor offered to grant the extension, provided that payment in the amount of $545,000 was received by August 24, 2012. This offer was accepted by the applicant’s ex-spouse, through her solicitor, on August 21, 2012. As I understand it, this payment was made by the applicant’s ex-spouse, and the matrimonial home was sold on August 31, 2012.

20The issue raised by the applicant in this proceeding is that in calculating the amount owing under the home financing agreement, the respondent failed to account for payments that the applicant says were made by UM on his behalf as part of his compensation package. The respondent’s records show that payments under the agreement were drawn from the applicant’s bank account up until February 13, 2008. The letter from the respondent dated August 2, 2012 only accounts for payments made up to that date, and not thereafter, when calculating the total amount required to discharge the respondent’s security interest in the property. The applicant’s position is supported to a certain extent by a payout statement dated February 13, 2011 showing the total amount required for discharge at that date in the amount of $432,052.80. This is lower than the remaining balance shown in the August 2, 2012 letter from the respondent. The applicant’s position is that this discrepancy is due to the respondent’s failure to account for payments made under the home financing agreement by UM.

21The applicant states that he was not aware of the agreement made by his ex-spouse regarding the amount required to discharge the home financing agreement until he received documents from his own lawyer regarding the closing of the sale of the matrimonial home. The applicant states that he was overseas and not in Canada for most of 2012, as he was required to seek employment overseas following the UM receivership. He states that he dealt with the issues regarding his separation from his ex-spouse over the telephone while overseas. He states that the sale of the matrimonial home did not close until December 2012, and he only received the closing documents from his lawyer in January 2013. He states that this was when he realized the discrepancy.

22On April 11, 2013, the applicant sent e-mail correspondence to the respondent’s solicitor to raise the alleged discrepancy in the amount required to discharge the home financing agreement for the matrimonial home. The applicant expressed his view that over $100,000 was owing from the respondent to correct this discrepancy, and asked if the respondent could look into this issue. The respondent’s solicitor replied the following day, April 12, 2013, to say that the respondent did not propose to respond to the statements made in the applicant’s e-mail correspondence, save to advise that the respondent did not agree with the applicant’s views. The respondent’s solicitor further stated that the issue of the discharge had been resolved and was a closed matter.

23As indicated above, while the Application is dated April 11, 2014, it was not considered filed with the Tribunal until April 14, 2014 as it had not been filed prior to 5:00 p.m. on April 11, 2014, and thus was deemed, pursuant to Rule 1.19 of the Tribunal’s Rules of Procedure, to have been received on the next business day, which was Monday, April 14, 2014.

24There are numerous problems with the applicant’s ability to proceed with the mortgage discharge allegation. First, in my view, the applicant lacks standing to bring this Application. The Application is not capable of falling within s. 5 of the Code, which protects against discrimination with respect to employment. The applicant was never employed by the respondent. The only alleged link to employment is that the respondent, as the ultimate holder of the home security agreement after it was assigned to the respondent by the receiver in July 2012, is alleged to have failed to take into account certain payments alleged to have been made under the home financing agreement by UM as part of the applicant’s compensation package. Even were I to accept all of the applicant’s allegations to be true, the connection between the respondent and the applicant’s employment with UM is tenuous at best, particularly as the applicant had not been employed by UM since it went into receivership in October 2011, some 10 months before the home financing agreement was assigned to the respondent.

25Nor in my view does the applicant’s allegation fall within the protection against discrimination with respect to the occupancy of accommodation protected under s. 2 of the Code. The issue raised by the applicant does not relate to the occupancy of accommodation, but rather to the proper calculation of the amount required to discharge the respondent’s security interest in the home financing agreement.

26Neither does the applicant’s allegation fall within either s. 3 of the Code, which protects against discrimination in relation to the right to contract on equal terms, or s. 1 of the Code, which protects against discrimination with respect to services, goods or facilities. Quite simply, the applicant did not have any contractual or service relationship with the respondent in relation to the home financing agreement. His ex-spouse did. She was the sole owner of the matrimonial home and was the sole party to the agreement. While I accept that the applicant signed two of the agreements in the material before me, there is nothing in the terms of these agreements which gives him any legal status, rights or obligations under the agreements.

27Second, there is the issue of the agreement reached between the respondent’s solicitor and the solicitor for the applicant’s ex-spouse in relation to the amount required for the discharge. This was a legally binding agreement between the respondent and the applicant’s ex-spouse, as the sole owner of the matrimonial home and the sole party to the home financing agreement. In the interest of resolving this issue, the respondent made several concessions and received a significant amount less than what it believed it was owed. What the applicant is now trying to do is re-open these negotiations and seek payment from the respondent in relation to the discharge amount that already had been paid by his ex-spouse in August 2012.

28As stated above, in my view the applicant lacks legal standing to do any such thing. But even if he did, in my view he in essence would be seeking to go behind the agreement made between his ex-spouse and the respondent.

29This Tribunal has repeatedly held that it is an abuse of process for an applicant to seek to raise before this Tribunal allegations that were the subject of a settlement agreement: see for example Solcan v. Kitchener (City), 2011 HRTO 2205 at paras. 41 and 42 and the cases cited therein. As stated in Solcan, the doctrine of abuse of process can be applied even where the agreement does not include a full and final release, where it is apparent that the parties intended to resolve the matter at issue: “the question is whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances”: see para. 42. See also Dickson v. General Motors of Canada Limited, 2013 HRTO 1347 at paras. 14 to 41.

30In my view, in the context of the concessions made by the respondent in reaching the agreement with the applicant’s ex-spouse regarding the amount required for the discharge, it would be unfair to permit the applicant (even if he had legal standing to do so) to continue with an allegation that is essentially seeking to re-open an agreement negotiated between legal counsel. While the applicant asserts that his ex-spouse was under financial distress at the time she agreed to the discharge terms, this has been held by this Tribunal to be an insufficient basis to set aside an agreement: see Kailani v. Securitas Canada, 2009 HRTO 1183.

31Third, there is the issue of delay. The calculation sent out by the respondent on August 2, 2012, regarding the amount required for the discharge makes it clear that there was no accounting for any payments under the home financing agreement from February 13, 2008 onward. As a result, the alleged discrepancy which is the basis for the applicant’s allegation was apparent from that date. While the applicant may say that he did not receive a copy of this letter, as it was addressed to his ex-spouse’s solicitor, there is no indication that he made any reasonable, diligent or timely efforts to inquire into how the discharge amount was calculated.

32Further, even on the applicant’s own admission, he became aware of the discrepancy in January 2013, some 15 months before he filed the Application. The applicant’s e-mail correspondence with the respondent’s solicitor is not capable of extending the date of the alleged incident of discrimination, as it does not support any new incident of alleged discrimination against the applicant, but rather is tantamount to a demand letter regarding a past alleged incident of discrimination: see Griffey v. Drs. Paul and John Rekai Centre, 2012 HRTO 1256 at para. 21.

33Section 34 of the Code states:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incidents to which the application relates; or

(b) if there was series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

34I find that the alleged incident of discrimination occurred in August 2012, when the respondent is alleged to have failed to take into account the payments alleged to have been made by UM as part of the applicant’s compensation package. This was some 20 months prior to when the Application was filed, which is well beyond the one-year period under s. 34(1). In my view, the applicant’s explanation as to why he did not find out about the alleged discrepancy until January 2013 is properly considered as part of any good faith explanation the applicant may have for the delay. However, even if I were to treat January 2013 as the time from which to run the one-year period, the Application still would have been filed some 15 months later and beyond the one-year period.

35As will be discussed below, there is a second allegation (the “mortgage documents allegation”) raised in the Application where no issue of delay arises. However, in my view, the mortgage discharge allegation is not capable of forming part of a “series of incidents” that extends to and includes the mortgage documents allegation. When assessing whether the allegations relate to a “series of incidents”, the Tribunal will generally consider the nature of the events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents relating to discrete and separate issues without some connection or nexus. See, for example, Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457, the Tribunal defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”. A “series of incidents” may be considered to exist where the incidents “share a common theme, similar parties and/or circumstances.” See Twyne v. Dominion Colour Corporation, 2013 HRTO 1769.

36The mortgage discharge allegation relates to an alleged discrepancy in the calculation of the discharge amount. The mortgage documents allegation relates to the alleged use by the respondent of mortgage documents prepared by the applicant. In my view, there is simply no sufficient pattern or nexus between these two allegations that would make them a “series of incidents” within the meaning of s. 34(1)(b) of the Code.

37As I have found that the mortgage discharge allegation is beyond the one-year period, I next need to consider whether the applicant’s delay in filing the Application was “incurred in good faith”.

38The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith, and that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

39In the context of determining whether delay in filing an application has been incurred in good faith, this Tribunal has held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities or waiting for the result of an internal investigation: see Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; Foley v. CAW-Canada Local 222, 2011 HRTO 1224; SB v. Toronto (City), 2012 HRTO 2018.

40In most cases, the Tribunal has found that ignorance of one’s rights under the Code and a failure to make inquiries about one’s rights is not sufficient to establish that delay was incurred in good faith. An oft-quoted passage from Lafleur v. Kimberley Scott, 2009 HRTO 1141, states:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v. Scherer 2002 CanLII 44920 (ON CA), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

41The applicant’s explanation for the delay in filing his Application is comprised of several elements. First, he relies on the fact that he was overseas from October 2011 until late 2013. In my view, this does not provide any real explanation for his failure to file his Application in a timely manner, as there is nothing that would have prevented the applicant from accessing information about this Tribunal and filing the Application electronically even while overseas.

42Second, the applicant makes reference to having been in a car accident in March 2013 and suffering a major injury to his wrist. Once again, this is far from a sufficient explanation for his failure to file his Application. While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317. No such medical information is before me.

43Third, the applicant states that in early 2014, one of his children was experiencing severe health issues that took up much of his time, since his daughter spent many days in the hospital over this period and he was attending to his daughter. At the hearing, I was told that this daughter has severe allergies, was admitted to hospital a number of times, and requires a lot of time for monitoring, especially as her mother is also ill. Once again, in my view, this provides no sufficient explanation for the applicant’s delay in filing his Application.

44Finally, the applicant states that he consulted with a number of lawyers after the response from the respondent’s solicitor on April 12, 2013, and was told that he had one year from that point to file his Application. I raised with the applicant that there is case law at this Tribunal regarding the issue of whether reliance on incorrect legal advice can amount to a “good faith” explanation for delay, to which the applicant replied that he may be able to provide e-mails setting out this alleged advice. To date, some three months after the preliminary hearing, no such e-mails have materialized.

45Ultimately, in his oral submissions before me, the applicant stated that he delayed filing his Application due to other priorities that he had in his life at the time. While I can sympathize with the fact that the applicant may have had other priorities, that is not a sufficient explanation to amount to “good faith” within the meaning of s. 34(2) of the Code.

46Accordingly, I find that the applicant has not satisfied me that the delay in filing his Application was incurred in good faith within the meaning of s. 34(2) of the Code. Given this finding, it is not necessary for me to consider whether substantial prejudice was caused to the respondent by the delay.

47Fourth and finally, in my view, this allegation his no reasonable prospect of success. This is essentially a dispute over an alleged failure by the respondent to properly account for payments alleged to have been made by UM under the home financing agreement. This is in substance a civil dispute, not a matter of discrimination under the Code.

48Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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 or witness statements.

49Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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 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.

50This Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application and considered the applicant’s written and oral submissions, I am of the view that the applicant would be unable to prove a link between the alleged violation of his individual or personal rights under the Code and the protected ground of creed cited in his Application.

51I am aware that the relationship between UM and Central 1 was predicated on the sale of Shariah-compliant financing instruments to the devout Muslim community. I also am aware that the applicant has alleged that UM experienced difficulties with and resistance from Central 1 with regard to the continued use of these instruments, which the applicant regards as discriminatory. As stated above, these allegations were the subject of the civil action commenced by UM in June 2011, which was ultimately purchased by Central 1 and dismissed.

52The difficulty I have is in drawing any link or connection between the applicant’s creed and the issue of the alleged discrepancy in calculating the discharge amount under his ex-spouse’s home financing agreement. In my view, no such link or connection is reasonably capable of being established by the applicant.

53For all of these reasons, the mortgage discharge allegation is dismissed.

54Before leaving this issue, I will address one further allegation that was raised by the applicant in his written and oral submissions. He alleges that the respondent is offering mortgages to UM’s former Muslim clients at higher interest rates and on less favourable terms than are offered to non-Muslim clients. The problem with this allegation is that it is not capable of amounting to an alleged violation of the applicant’s individual and personal rights under the Code. The applicant did not hold any mortgage with the respondent; his ex-spouse did. In 2012, the applicant’s ex-spouse was not seeking renewal of the home financing agreement; she was seeking its discharge. While I have in the material before me the terms for mortgage renewal offered in June 2013 by the respondent to one of UM’s former clients, I have nothing in the material to indicate that any mortgage or mortgage renewal was sought by the applicant from the respondent, or was offered by the respondent to the applicant. As a result, the applicant simply has no standing to raise this allegation.

The mortgage document allegation

55The applicant states that, as principal of UM, he prepared the text of the Shariah-compliant home financing agreement used by UM with its devout Muslim clients. He alleges that the respondent is continuing to use an amended version of this agreement and is “passing off” this amended agreement as being Shariah-compliant when it is not. He alleges that the respondent’s actions in this regard have had a continuous and ongoing discriminatory effect on him in that the applicant alleges that he is being “mocked” in the Muslim community for preparing a home financing agreement that is being used by the respondent but is not Shariah-compliant.

56In particular, the applicant has referred me to a letter sent by the respondent to one of UM’s previous clients offering to renew the home financing agreement on the same terms as the existing agreement, with the deletion of two paragraphs. These two paragraphs relate to the use of mediation and arbitration to resolve any disputes under the agreement.

57In his oral submissions at the hearing, the applicant acknowledged that the respondent would not actually say to former UM clients that the agreement was Shariah-compliant, but at the same time would not say that it was not. The issue as I understand it is that, in order for the agreement to be Shariah-compliant, the financing party needed to publicly state that it was in a partnership with the home owner. UM was prepared to do this, while the respondent was not.

58In my view, this is not an allegation that falls within this Tribunal’s jurisdiction. It is not a matter with respect to employment, for the same reasons as identified above. It is not a matter pertaining to the applicant’s occupancy of accommodation. It does not relate to any services alleged to have been provided by the respondent to the applicant, nor does it relate to the applicant’s ability to contract on equal terms. In short, this allegation simply does not fall within any of the protections provided under the Code as it pertains to the applicant’s personal and individual interests.

59In my view, at most, this issue is in essence a matter of the applicant’s alleged copyright or other proprietorial rights in the agreement. In fact, the applicant commenced a civil action against the respondent in November 2014 on precisely this basis. The civil action, in my view, is the proper means by which to address this issue, and not the Code.

60Accordingly, this allegation is dismissed as being not within this Tribunal’s jurisdiction.

ORDER

61For all of the foregoing reasons, the Application is dismissed in its entirety.