Bundah v. triOS College Business Technology and Health Care Inc., 2016 HRTO 796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahara Bundah

Applicant

-and-

triOS College Business Technology and Health Care Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: June 13, 2016

Citation: 2016 HRTO 796

Indexed as: Bundah v. triOS College Business Technology and Health Care Inc.

APPEARANCES

Shahara Bundah, Applicant

Alireza Hesami, Representative

triOS College Business Technology and Health Care Inc., Respondent

Andrew Ebejer and Leah Simon, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against her because of race, colour, ancestry, place of origin, citizenship, ethnic origin and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant self-identifies as an African American single mother.

2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application, or any part of it should be dismissed for the following reasons: (1) on the basis that there is no reasonable prospect that the Application, or any particular part of it, will succeed or (2) on the basis that another proceeding has appropriately dealt with the substance of the Application.

3For the reasons that follow, I find that some of the applicant’s allegations must be dismissed on the basis that they stand no reasonable prospect of success under the Code. However, at this stage, it is not appropriate to dismiss the applicant’s allegations that the respondent discriminated against her based on race or any of the other race-related grounds listed in the Application in regards to the events of July 29, 2015 and the applicant’s subsequent dismissal from the respondent college in August 2015.

should the application be dismissed on the basis that it has no reasonable prospect of success?

Applicable Legal Principles

4The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

6The Tribunal does not hear any actual evidence in a summary hearing. The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment he or she allegedly experienced with a ground protected under the Code.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, 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. Having set out this basic legal framework, I now turn to the factual background of this particular case.

Factual Background

9The applicant was a student at the respondent’s Scarborough campus. The respondent is a private career college governed by the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched. L.

10In her Application, the applicant referred to a variety of concerns she had in relation to her experiences with the respondent. She raised concerns regarding the following:

a. allegedly being misled about whether her program was accredited;

b. the cost of books she had to purchase; and

c. having to take courses she had already taken.

11From the Application, it is unclear whether the applicant intended to raise these concerns as allegations of discrimination under the Code.

12In addition, the applicant alleged that the respondent discriminated against her in relation to a series of events that occurred on July 29, 2015. On that day, one of her instructors removed her from class and ultimately called the police to remove her from the respondent’s property. The applicant stated that, at the start of class that day, she and one of her classmates were discussing matters of concern to both of them such as the issue of whether their program was accredited. As the applicant told her classmate that the school was misleading them and that she did not like being there, the instructor for the class pulled her outside the class and told her he did not want to hear her speaking like that. The applicant attempted to return to class and the instructor told her to leave. When she refused, the respondent called the police to escort her off the college’s property.

13Ultimately, the respondent suspended the applicant for two days. On August 5, 2015, the applicant met with the Campus Director for the Scarborough campus. The applicant told the Campus Director that she did not feel comfortable at the college. According to the applicant, the Campus Director told her that she was not ready to return to class and that she was dismissed from the college.

14The respondent has put forward a different version of the events of July 29 and August 5, 2015. The respondent alleged that the applicant was being disruptive in class on July 29, 2015. As well, the respondent stated that it offered the applicant the opportunity to transfer to another campus but she withdrew from the program because that option was not feasible for her. The respondent stated that it was not prepared to allow the applicant to return to the Scarborough campus because it felt that she was a threat to the Campus Director and her classmates. The applicant disputes the respondent’s version of events.

Findings

15To the extent that the applicant intends to allege that the concerns listed at paragraph 10 above amount to violations of the Code, her allegations in regards to these concerns have no reasonable prospect of success. Her representative did not address these concerns at the summary hearing. The applicant has pointed to no evidence that could link these concerns to the grounds of discrimination listed in her Application. Therefore, these allegations must be dismissed.

16When I asked the applicant’s representative what evidence the applicant intended to rely upon to link the events of July 29 or August 5, 2015 to the Code, the applicant’s representative noted that the classmate who the applicant was speaking to on July 29, 2015 was a white woman. He stated that the applicant would rely on this fact to support her allegation that her race was a factor in why she was removed from class and why the respondent called the police that day. With regard to her sex discrimination allegation, the applicant stated that the instructor who removed her from class was having family problems and that “everyone knew he had problems with women”.

17The respondent’s counsel submitted that the applicant had pointed to no objective evidence from which an inference of discrimination could reasonably be drawn. He noted that there is no suggestion that the instructor ever made any reference to the applicant’s race. He also noted that there was no temporal connection between the instructor’s discovery of the applicant’s race and the events set out in the Application. Finally, the respondent’s counsel noted that, in her Application, the applicant stated that she was speaking at the time that her instructor asked her to step outside. According to the respondent, this leads to the inference that the instructor asked the applicant, and not her classmate, to step out of the class due to the fact that it was the applicant who was speaking at the time the instructor entered the class.

18As noted above, for the purposes of the summary hearing, I must assume that the applicant’s version of events to be true and provable. At this stage, based on her version of events, I cannot find that her allegations of race-related discrimination stand no reasonable prospect of success. On the facts as related by the applicant, she was speaking with a white classmate about their mutual dissatisfaction with their program. The instructor only asked the applicant to leave the class and not her classmate. Based on these facts, an adjudicator may reasonably find that the applicant’s race was a factor in the instructor’s actions and the respondent’s subsequent calls to the police.

19I appreciate that the respondent will likely argue at the hearing that the reason the instructor singled out the applicant was because she was the one he heard speaking at the time he entered the class. At this stage of the Tribunal’s process, I have heard no witness evidence and therefore it is not appropriate for me to make any factual findings. In order to address the applicant’s allegations of race-related discrimination and the respondent’s refutation of them, the Tribunal must hear evidence from the parties in a full hearing on the merits. For this reason, I find it is not appropriate to dismiss the applicant’s allegations of discrimination based on race and the other race-related grounds listed in her Application in regards to the events of July 29, 2015.

20Likewise, I find that it is not appropriate to dismiss her allegations of race-related discrimination in relation to her dismissal from the college in August 2015. These allegations are closely connected to the events of July 29, 2015. In my view, the Tribunal must hear evidence in a hearing on the merits to determine these allegations.

21While I cannot dismiss the applicant’s race-related allegations in relation to the events of July and August, 2015, I dismiss her allegations of discrimination based on gender identity/sex in relation to these events. The applicant has pointed to no evidence that could reasonably link these events to her sex. Her assertion that her instructor was known to have a problem with women is a bald assertion and insufficient to make out a reasonable prospect of success.

22In addition, the fact that the applicant’s classmate was also a woman undermines her allegation that her instructor singled her out because he had a problem with women. If that were the case, one would expect that he would have asked both the applicant and her classmate to leave the class. Overall, the applicant has not pointed to any information that could reasonably link either her instructor’s actions or the respondent’s actions to her sex.

23I make the same finding in relation to the applicant’s allegation that her instructor and/or the respondent singled her out because she is a single mother. This too is simply a bald assertion by the applicant. She has pointed to no evidence she could rely upon in a hearing that could link the respondent’s actions in this case to her status as a single mother.

24For the above reasons, the applicant’s allegations in relation to the concerns listed at paragraph 10 are dismissed. In addition, her allegations of discrimination based on her sex or her status as a single mother are also dismissed. At this stage, her race-related allegations in regards to the events of July and August 2015 cannot be dismissed as having no reasonable prospect of success.

Should the application be dismissed under s. 45.1 of the Code?

25After her dismissal from her program, the applicant made a complaint to the Ministry of Training, Colleges and Universities – Private Career Colleges Branch. A Ministry investigator conducted an investigation. Following the investigation, she sent an email to the parties saying she found no evidence that the respondent contravened the Private Career Colleges Act, 2005 or its associated legislation.

26The respondent requested that the Tribunal dismiss the Application under s. 45.1 of the Code on the basis that the Ministry’s investigation appropriately dealt with the substance of the Application.

27Section 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.

28In order for s. 45.1 to apply, there must have been a “proceeding” that is alleged to have appropriately dealt with the substance of the Application. I am not convinced that the Ministry’s investigation constitutes a “proceeding” within the meaning of s. 45.1. However, even if it does amount to a “proceeding” for purposes of s. 45.1, the investigator did not deal with the substance of the applicant’s discrimination allegations. It is clear from the investigator’s email that she only considered whether the respondent had contravened the Private Career Colleges Act, 2005 or its associated legislation. There is no sign in her email or elsewhere that the investigator dealt with the applicant’s discrimination allegations. The circumstances surrounding the Ministry’s investigation are similar to those in Soheil-Fakhaei v. Canadian Business College, 2010 HRTO 2466. As in that case, I find that the Ministry’s investigation did not deal with the substance of the Application as it relates to the applicant’s allegations of discrimination under the Code. For this reason, the respondent’s request to dismiss the Application under s. 45.1 of the Code is denied.

order

29The Application is dismissed in part. The applicant’s allegations of discrimination based on race, and the other race-related grounds listed in her Application, in regards to the events of July 29, 2015 and her dismissal from the college in August 2015 will continue in the Tribunal’s process.

30I am not seized of this Application.