HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Al Bagherian
Applicant
-and-
Seneca College of Applied Arts and Technology
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Bagherian v. Seneca College of Applied Arts and Technology
1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2A mediation was held in this case on June 1, 2016.
3On June 2, 2016 the applicant filed a Request for Order During Proceeding ("Request"). By correspondence dated June 7, 2016 the parties were advised that the respondent need not respond to the applicant's Request.
4The Request is denied.
5In his Request the applicant seeks the following:
a. An expedited hearing;
b. An order of "punitive action for knowingly wasting the time and resources of the Tribunal;
c. An order that "the respondent's lawyer not to abuse the Prima Facie of case"
6In respect of the first Request the applicant provides no reasons to justify an expedited hearing in this case and it is denied.
7As regards the second request I am not satisfied based on the applicant's submission that there has been any inappropriate conduct on the part of the respondent or its counsel. The respondent is of the view that this case has no merit and should be dismissed on a summary basis. They are entitled to take that position and in fact it has some merit. The applicant on the other hand in making submissions in support of his Request makes a number of unsubstantiated and inappropriate allegations about the respondent's counsel.
8For these reasons the Request of the applicant is denied.
The Applicant's conduct
9As indicated the applicant has in the course of, most particularly, this Request made baseless and inappropriate allegations about the conduct of the respondent and its counsel. The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal stated as follows:
Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant's rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal's Rules. The Tribunal's procedures are less formal than a court's and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party's failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.
10In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:
Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal's process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.
It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal's process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party's submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.
11The applicant is reminded of the Tribunal's Rules of Procedure A7.1 which provides:
All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.
12The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended ("SPPA"), and its Rule a8.1 to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. The Tribunal has applied this power to make appropriate Orders including in certain cases the dismissal of an Application where parties have engaged in vexatious conduct in the Tribunal's process. This would include the kinds of inappropriate accusations made by the applicant in this case. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; n Okunbor v. Hopewell Logistics, 2009 HRTO 2124 and Vizcaya v. University of Toronto 2012 HRTO 916.
Summary Hearing
13In its Response (Form 2) the respondents requested that the Application be dismissed in its entirety. The respondent has also suggested that the applicant has failed to provide sufficient facts to support a prima facie violation of the Code. Having reviewed the pleadings in this case the Tribunal directs that a summary hearing be held to determine whether all or part of this Application should be dismissed because of delay or because all or part of it has no reasonable prospect of success.
14Rules 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.
15Details 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.
16Firstly this Application was filed on August 27, 2015 and relates to events primarily in 2012 and 2013. There is also an allegation of decision which appears to have been made and communicated to the applicant in June 2014. Section 34 (1) and (2) of the Human Rights Code read as follows:
(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 incident to which the application relates; or
(b) if there was a 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.
The parties are expected to make submissions on whether the Application is outside the Tribunal's jurisdiction for this reason.
17Secondly as has been observed on many occasions, the 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 Human Rights 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 other pleadings, it appears that the applicant may be unable to prove a link to the grounds alleged.
18The applicant also alleges reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondent's alleged actions. Having reviewed the Application and other pleadings there does not appear to be any link between any of the actions of the respondent and a previously claimed Code right. Similarly the pleadings reveal no evidence of an intention on the part of the respondent to impose an adverse consequence on the applicant because of a prior Code claim or complaint.
19The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed on the basis of delay or because it has no reasonable prospect of success.
20A Notice of Summary/preliminary Hearing will follow from the Registrar's Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days following the date of this Interim Decision. The parties may wish to consult the Tribunal's Practice Direction on Summary Hearing Requests, available on the Tribunal's website at www.sjto.gov.on.ca/hrto/.
DIRECTION
21The Registrar will schedule a half-day summary/preliminary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days following the date of this Interim Decision.
22I am not seized of this case.
Dated at Toronto, this 8th day of June, 2016.
"signed by"
David Muir
Vice-chair
CORRECTION
The Interim Decision dated June 8, 2016 contains a typographical error in paragraph 19. The paragraph is intended to read as "The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed on the basis of delay or because it has no reasonable prospect of success".
The Interim Decision is amended accordingly.
Dated at Toronto, this 9th day of June, 2016.
"signed by"
David Muir
Vice-chair