Ziad Abou Elfetouh v. The Governing Council of the University of Toronto, 2015 HRTO 1429

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 26, 2015 Citation: 2015 HRTO 1429 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, filed on November 17, 2014, 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 hearing of this matter is scheduled for October 29 and 30, 2015.

4The purpose of this Interim Decision is to address the applicant’s requests filed on October 22, 2015.

background

5The 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 continued 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.

6The applicant asserted that the above documents would show how the respondent allocated and reserved positions for Canadian citizens who studied abroad, as opposed to non-Canadian citizens who studied abroad.

7In an Interim Decision, 2015 HRTO 1318, (“the Interim Decision”), released on October 5, 2015, I denied 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. With respect to his request for information on IMG applicants who had been offered interviews, but were unsuccessful in obtaining a position, I stated in the Interim Decision that I was not prepared to order the production requested, but indicated that 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.

8In his October 22, 2015 request to adjourn, the applicant argues that he will be prejudiced if the hearing goes ahead, in part, because the Interim Decision denied the applicant’s production request. He argues that he now needs more time to assemble additional documents and to add a witness to prove discrimination. He also wishes more time in order that the Application be amended to add as respondents Ministry and Canadian Residency Marching Service (“CaRMS”) and the Ministry of Health and Long-Term Care (“the Ministry”).

9The respondent opposes the applicant’s request to adjourn and add parties.

deny request to adjourn and to add parties

10The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournment outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not gran adjournments, even when all parties consent.

11In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, the Tribunal addressed the issue of adjournment requests and stated at paragraph 4:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used.

12On June 11, 2015, the Tribunal sent a Notice of the Hearing to the parties, indicating that the hearing would commence on October 29, 2015. Deadlines for filing documents and witness statements were provided by the Tribunal. The issue of what documents needed to be produced was the issue dealt with in the Interim Decision which made it clear that the evidence of the parties at the Hearing must focus on the strength of the applicant’s application for the respondent’s program versus the strength of the successful candidates’, before the Tribunal entertains any request for further production.

13It appears that the applicant, unhappy with the Interim Decision, is now seeking an adjournment to bolster his case with additional evidence which would unlikely be relevant if the applicant’s candidacy for the respondent’s program was significantly weaker than the candidacies of those who were successful. The Interim Decision identified that discreet issue as the focus for the two hearing days scheduled. It may or may not be appropriate, after hearing evidence on that issue, to hear any circumstantial evidence pertaining to alleged systemic practises affecting the respondent’s treatment of the applicant.

14The most expeditious way to proceed is to deal with the evidence on October 29 and 30, 2015 as directed by the Interim Decision, and to take submissions from the parties following that evidence as to whether the applicant should be permitted to call additional evidence through an additional witness at a later date.

15With respect to the applicant’s request to add respondents, it is too late in the process, on the eve of the hearing, to add parties, particularly given that neither of the proposed parties is alleged to have denied the applicant any services or to have refused him employment. The applicant’s request to add the Ministry and CaRMS is therefore denied.

16In these circumstances, where the adjournment request was made a mere week before the hearing, and where the respondent opposes the request, the request to adjourn is denied.

direction

17At 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 before the hearing of evidence begins.