Sardar v. University of Ottawa, 2016 HRTO 304

Human Rights Tribunal of Ontario

Between:

Yasmin Sardar Applicant

-and-

University of Ottawa Respondent

Decision

Adjudicator: Sheri D. Price Date: March 7, 2016 Citation: 2016 HRTO 304 Indexed as: Sardar v. University of Ottawa

Appearances

Yasmin Sardar, Applicant Waleed AlGhaithy, Representative

University of Ottawa, Respondent Karen Jensen, Counsel

Introduction

1This Application, filed in July 2011, alleges that the respondent discriminated against the applicant because of her race, colour, place of origin, ethnic origin, disability and age with respect to employment, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application also alleges that the respondent reprised against the applicant contrary to the Code.

2The applicant is a foreign-trained medical professional who started as a third-year resident with the Obstetrics and Gynecology program at the respondent university’s Faculty of Medicine in September 2008.

3The applicant alleges that, commencing in or around December 2008, the respondent discriminated against her in various ways, including by allegedly subjecting the applicant to unfair assessments of her performance in a clinical setting; by placing the applicant on remediation in or around May 2009; by demoting the applicant to second-year resident status while she was in her fourth-year residency; and by placing the applicant on probation.

4The applicant appealed the respondent’s decision to place her on probation, first, to the Faculty Council Appeals Committee of the Faculty of Medicine, and then, when that appeal was dismissed, to the Senate Appeals Committee (“SAC”) of the University of Ottawa. After the appeal to the SAC was also dismissed, the applicant applied to the Ontario Divisional Court for judicial review of the SAC’s decision.

5The Ontario Divisional Court dismissed the applicant’s application for judicial review and held that the Senate Appeals Committee’s decision was both procedurally fair and reasonable. In its June 2014 decision, the Divisional Court stated, at para. 32:

As the record reveals, Dr. Sardar had performed poorly throughout her residency, had acted in an unprofessional manner on several occasions, was unwilling to accept constructive criticism, and had committed several errors in her treatment of patients, some of which were potentially life-threatening. It was for these reasons that the SAC concluded that the decision to place her on probation was justified.

6The court went on to find that the SAC’s decision was within the range of possible, acceptable outcomes and was therefore reasonable (at para. 34).

7The applicant sought leave to appeal from the Ontario Divisional Court’s decision to the Ontario Court of Appeal. Leave to appeal was denied.

8The respondent university has filed a Request that the Application be dismissed under s.45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with in the proceeding before the Ontario Divisional Court. The Tribunal directed that an oral hearing be convened to give the parties an opportunity to make submissions on the respondent’s Request.

9The oral hearing was held on December 8, 2015. Both parties were given an opportunity to make submissions with respect to the respondent’s Request. The parties also submitted written submissions on the respondent’s Request.

10For the reasons that follow, I find that the substance of the Application has been appropriately dealt with in the judicial review proceeding before the Ontario Divisional Court. The Application is therefore dismissed under s.45.1 of the Code.

Analysis and decision

11Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

12The Tribunal will generally dismiss an Application under s.45.1 of the Code if it finds that the human rights issues in the Application were decided in another proceeding by an adjudicator with jurisdiction to interpret and apply the Code and to remedy any Code breaches found to have occurred, and in which proceeding the applicant knew the case to be met and had a chance to meet it. In such circumstances, the principle of finality prevents the applicant from relitigating issues legitimately decided elsewhere in an attempt to obtain a different outcome: British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 37. However, the Tribunal may decline to dismiss an Application under s.45.1 if it finds that doing so would work an injustice in the circumstances of the particular case: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), as applied in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, and K.M. v Kodama, 2014 HRTO 526, both upheld on judicial review in Ontario (Correctional Services and Community Safety v. De Lottinville, 2015 ONSC 3085 (Div. Ct.); Ormesher v. Schwarz Law LLP, 2014 HRTO 1757.

13In this case, both parties expressly agree, and I accept, that the substance of the human rights Application is the same as the substance of the proceeding before the Ontario Divisional Court. The applicant further clarified during the oral hearing that she is not seeking to raise any issues in the human rights Application that were not dealt with in the context of the academic appeals process that culminated in the judicial review proceeding before the Divisional Court. The applicant submits that while there may be some “minute” differences in the details, the issues in the human rights Application are essentially the same as the issues dealt with by the court.

14In my view, given that the issues in the human rights Application were decided by the Ontario Divisional Court, it is clear that the substance of the Application was appropriately dealt with in another proceeding, and that the Application ought to be dismissed under s.45.1 of the Code.

15The Ontario Divisional Court certainly had jurisdiction to interpret and apply the Code in reviewing the SAC’s decision regarding the applicant. It is also clear (and there is no suggestion to the contrary) that the proceeding before the Ontario Divisional Court is the sort of proceeding in which the applicant knew the case she had to meet and had a chance to meet it. Nor has the applicant pointed to any of the sort of factors discussed in Penner, above, that might lead the Tribunal to conclude that it would be unfair to dismiss the Application based on the proceeding before the Divisional Court.

16The applicant clearly disagrees with the Ontario Divisional Court decision, referring to it as “absurd” and “fraudulent”. During the oral hearing, the applicant took particular exception to the Divisional Court’s treatment of her purported demotion to second-year status, the respondent’s later realization that such a demotion was not possible under the academic regulations, and subsequent decision to maintain the applicant as a fourth-year resident, but to supervise and evaluate her as if she was at the second-year level. The applicant argues that the respondent’s actions were “against international law” and the principles of justice and that the Divisional Court’s decision upholding such actions is “unenforceable”.

17However, the fact that the applicant disagrees with the decision is not a basis to permit her to relitigate issues that were decided by a panel of the Divisional Court or to challenge, before this Tribunal (itself subject to the Divisional Court’s authority), the court’s legal and factual findings that the applicant “performed poorly throughout her residency” and that the SAC’s decision regarding the applicant was fair and reasonable. I agree with the respondent that there is no way that the Tribunal could uphold the applicant’s discrimination claim without contradicting the findings made by the Divisional Court.

18In coming to the conclusion that the Application should be dismissed under s.45.1, I have considered the applicant’s submission that the Divisional Court’s decision was not “final” and therefore not a proper basis for dismissing an Application under s.45.1. However, I do not find this submission to have merit.

19I agree that the Tribunal ought not to dismiss a Code application based on a decision in another proceeding that is not final, such as where the other decision is under appeal: Steel v. Johnson Controls Automotive Canada LP, 2014 HRTO 1199; Favero v. 1895357 Ontario Inc., 2015 HRTO 688.

20However, I do not agree with the applicant that the Divisional Court’s decision in her judicial review application is not a final decision. The Divisional Court’s decision was issued in 2014 and leave to appeal to the Ontario Court of Appeal was denied. The decision in which the Ontario Divisional Court determined the issues raised in the human rights Application is therefore final.

21In support of her position that the human rights Application should not be dismissed under s.45.1 of the Code, the applicant points to another Ontario Superior Court decision involving her representative in this matter, Dr. AlGhaithy: Alghaithy v Attorney General of Ontario, 2015 ONSC 5575. In that case, both the applicant and Dr. Alghaithy brought court applications seeking, among other things, an order requiring the College of Physicians and Surgeons of Ontario (“CPSO”) to issue them certificates of registration. The court applications were dismissed as “manifestly premature” based on the court’s finding that both the applicant and Dr. AlGhaithy had alternate avenues to pursue the relief sought (i.e. the CPSO’s Registration Committee and the Health Professions Review Board) and had not demonstrated that there was urgency to the applications. I note that the court applications were dismissed as against the respondent in this case, University of Ottawa, insofar as no relief was sought against the University of Ottawa.

22The applicant submits that the Divisional Court’s 2014 decision that dealt with the same issues as the human rights Application is in conflict with the Superior Court’s decision in hers and Dr. AlGhaithy’s case against the Attorney General, the CPSO and the Ministry of Health and Long-Term Care. The applicant submits that the Tribunal should hold this matter in abeyance until the conflict between the two decisions is resolved by the courts. (The applicant submits that “the appropriate legal proceedings” will be brought before the supervisory courts within a reasonable period of time.) In the alternative, the applicant submits that, if the Tribunal decides to proceed, “it must address the raised issue of the conflicting judgments rendered by the Ontario’s Superior Court of Justice in a transparent manner.” During the oral hearing, the applicant submitted that this meant that the Tribunal should hear her human rights Application on its merits, independent of the courts.

23First, I do not agree that the court decisions referred to are in conflict. Even if they were, there is certainly no conflict that is relevant to the issue under s.45.1 of the Code. The 2015 decision did not address the substance of the human rights Application, namely the fairness and reasonableness of the University of Ottawa’s decisions about the applicant’s residency. Indeed, as noted above, the University was removed as a party to that proceeding because no relief was sought against it.

24Moreover, even if there was a conflict between the decisions, there is no merit to the suggestion that it would be appropriate for this Tribunal, under the guise of acting independently, to disregard the Divisional Court’s 2014 judicial disposition of the issues in the human rights Application and to allow the applicant to relitigate them in an attempt to have the Tribunal come to a different conclusion than the Divisional Court. Any relief that might be available based on a finding that the court’s decisions were in conflict or wrong would have to be sought and obtained from the appellate courts. The applicant attempted to do this, but leave to appeal to the Ontario Court of Appeal from the Divisional Court’s decision was denied. Accordingly, the Divisional Court’s 2014 decision in respect of the applicant’s application for judicial review stands as the final disposition of the issues in the human rights Application.

25For the above reasons, I find that the judicial review application to the Ontario Divisional Court appropriately dealt with the substance of the Application within the meaning of s.45.1 of the Code. The Application is dismissed accordingly.