Salehi v. Association of Professional Engineers of Ontario, 2017 HRTO 1066

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Behrouz Salehi

Applicant

-and-

Association of Professional Engineers of Ontario

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: August 16, 2017

Citation: 2017 HRTO 1066

Indexed as: Salehi v. Association of Professional Engineers of Ontario

APPEARANCES

Behrouz Salehi, Applicant

Self-represented

Association of Professional Engineers of Ontario, Respondent

Natasha Danson, Counsel

Introduction

1This Application, filed October 3, 2016, alleges discrimination with respect to membership in a vocational association because of race, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant states in his Application that the date of the last event of discrimination was May 20, 2015. There are no allegations in the narrative portion of the Application relating to May 20, 2015, and the Tribunal issued a Case Assessment Direction (“CAD”) on January 13, 2017, directing that a preliminary hearing be convened in order to address the issue of delay in filing the Application.

3Prior to the preliminary hearing, the respondent provided written submissions in which it argues that the Application should be dismissed on the basis of delay. The respondent also seeks to have the Application dismissed on the basis that a civil action had been commenced in respect of the same matter and that therefore under s. 34.11 of the Code, the Tribunal lacked jurisdiction to consider the Application, and also on the basis that the matter had been appropriately dealt with in another forum and the Tribunal should exercise its discretion to dismiss under s. 45.1 of the Code.

4At the preliminary hearing, the applicant advised that he was prepared to address all three issues argued by the respondent. All issues were presented and they were argued by both parties.

Background

5The applicant, who immigrated to Canada from Iran in 1997, alleges that the respondent Association of Professional Engineers of Ontario (APEO) did not grant him a licence as an engineer in Ontario until 2013, for discriminatory reasons.

6In his Application, the applicant states that the last incident of discrimination occurred on May 20, 2016. However, the applicant was granted his licence by the APEO in 2013. After receiving his licence, the applicant commenced a civil proceeding on November 20, 2013, and since that time he has been pursuing litigation against the respondent for the fact that it did not issue him a licence earlier. His civil proceeding was dismissed following a motion for summary judgement on November 26, 2015 (Salehi v. Assn. of Professional Engineers of Ontario [2015] O.J. No. 6186, appeal to Court of Appeal dismissed, [2016] O.J. No. 2922, motion for leave to appeal to Supreme Court of Canada dismissed, [2016] S.C.C.A No. 369). It appears that the applicant’s reference to May 20, 2016 in his Application is a reference to the date of the hearing before the Court of Appeal for Ontario. The events which form the basis of the applicant’s allegations in this Application occurred prior to the granting of his licence by the APEO in 2013. The Application was filed more than a year after the events to which it relates.

7The applicant states that he qualified and worked in Iran as a “Gas Engineer.” He alleges that when he first communicated with the respondent, it advised him that Gas Engineering is not recognized in Canada. He states that in 1998 he asked the University of Toronto to evaluate his education, and they evaluated it as equivalent to Petroleum Engineering in Canada. He alleges that the APEO “denied to accept [his] 22 years engineering experience without verification” and advised him to obtain further experience. He alleges that in 2006 he applied for a licence from APEO, now with an additional 9 years of experience behind him. He states that in 2007, APEO advised him to participate in a Chemical Engineering examination program or take Chemical Engineering courses at Ryerson University. He states that he registered as a student at Ryerson University and completed all required courses in 2009. He alleges that APEO “started another rounds of humiliation and abuse till June 2013”, when he was accepted as a professional engineer in both Chemical and Petroleum Engineering.

8He states that it took 16 years for APEO to award him his licence and alleges that during that time, they did not answer his questions or complaints. He states that in November 2013, he commenced a civil proceeding against APEO in the Superior Court of Justice, alleging negligence. He states that in November 2014, he received an affidavit from APEO and that it was at that point, upon reading the affidavit, that he “realized” they had discriminated against him. He states that on April 16, 2014, he amended his statement of claim. He alleges that in another affidavit, in May 2015, APEO “accepted its mistakes and approved me as a Gas Engineer.” He alleges that in cross-examination in October 2015, APEO “admitted denial of [his] experience as an error” and told him that his experience from 1976 to 1997 had never been “a question.” He alleges that in November 2015, during a summary judgment motion, the motion judge refused to consider whether his human rights had been violated and dismissed his action on the ground that APEO had acted in good faith. He alleges that in May 2016, the Court of Appeal for Ontario only considered the question of good faith.

9In his original statement of claim, among other things, the applicant makes mention of his human rights and claims that they have been violated. At the preliminary hearing in this Application, he stated that his reference in the Statement of Claim was to the United Nations’ Universal Declaration of Human Rights, which he was advised by the court, is not enforceable in an Ontario court. In a Fresh as Amended Statement of Claim, filed after the motion for summary judgement was dismissed, and dated July 30, 2014, he states that the APEO violated his “constitutional and human rights”, and claims that he was discriminated on due to his “age, ethnicity and background.”

10On August 14, 2015, he filed an Affidavit in respect of his amended Statement of Claim, in which he stated:

The Defendant violate my rights, as ‘6.Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H. 19, s. 6; 1999, c. 6, s. 28 (7); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (7); 2012, cl 7, s. 5” Exhibit 18

The Code was attached to his Affidavit as “Exhibit 18”. At another paragraph in the same Affidavit, he quoted s. 46.1 of the Code, regarding remedial orders available to the court.

11At the preliminary hearing, the applicant stated that he did not know he had been discriminated against until he received the respondent’s November 11, 2014 Affidavit in the civil matter. He also stated at the preliminary hearing that it was once he had that Affidavit and once he had cross-examined the manager of the APEO on October 9, 2015, that he felt he had the evidence he required to prove discrimination.

12At the preliminary hearing, he then stated that once he had the proof, he delayed further in filing his Application at the Tribunal as the civil proceedings were ongoing and he did not feel he could have two actions occurring at the same time.

13With respect to the applicability of the civil proceeding and ss. 34.11 and 45.1 of the Code, the applicant submitted that although he amended his Statement of Claim and claimed a violation of his human rights, the court’s determination had been on the basis of good faith only and it had not explicitly dealt with the question of whether or not he had been discriminated against.

14The respondent submitted that the applicant had cited discrimination in his civil proceeding against it as early as November 2013, and that he had not provided a good faith explanation for his delay in filing an Application alleging discrimination at the Tribunal. The respondent also submitted that it would be prejudiced by the delay as it would be required to litigate a matter it has already litigated. The respondent submitted that the Application should be dismissed on the basis of delay.

15The respondent also submitted that the civil action had been commenced in respect of the same matter and that therefore under s. 34.11 of the Code, the Tribunal lacked jurisdiction to consider the Application.

16It also submitted that given the court’s decisions in the civil matter, the Tribunal should exercise its discretion to dismiss under section 45.1 of the Code, as the matter has been appropriately dealt with in another proceeding.

DELAY

17For the reasons set out below, I have determined that the Application is untimely and should be dismissed for delay.

18Section 34 (1) and (2) of the 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.

19The Tribunal will not deal with an application filed more than one year after the incident, or last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

20In addressing good faith within the meaning of section 34(2) of the Code, the Tribunal states as follows in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25:

In my view, where an applicant seeks to establish that a delay in filing an application was ‘incurred’ in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City) 2009 HRTO 1137, the Tribunal held, referring to a number of court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquiries about options for pursuing the alleged wrong.

21With respect to the principle of discoverability, the Tribunal has observed as follows in Klein v. Toronto Zionist Council, 2009 HRTO 241 at paragraph 23:

What the applicant later uncovered was not information that assisted her in discovering her potential case under the Code, but rather evidence that would support her allegations. The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

22It is clear that the applicant felt, as early as November 2013, when he commenced his civil proceeding, or certainly by August 14, 2015, when he cited section 6 of the Code in an affidavit in support of his amended Statement of Claim, that he believed he had been discriminated against by the respondent. He submits that he did not believe he was able to prove discrimination until he received the respondent’s documentation on November 11, 2014. Without commenting on the strength of the proof the applicant states he believes he obtained on November 11, 2014, the date on which an applicant believes they have “proof” is not the relevant date for the purposes of s. 34 of the Code. In my view, the information the applicant says he received on November 11, 2014 from the respondent is not information that assisted him in discovering a potential case under the Code. Rather, it was evidence that, in his view, supported his allegation of a violation of the Code. As noted above, he had come to the conclusion at least as late as August 2014 when he swore his Affidavit which stated that the respondent had violated his Code rights. In any event, even if either of the dates of November 11, 2014, when he received the Affidavit from the respondent, or August 2015, when he filed his Affidavit, were to be considered the relevant date for purposes of s. 34 of the Code, he did not file his Application at the Tribunal until more than one year after the last of those dates.

23The applicant also submitted at the preliminary hearing that he did not file his Application with the Tribunal earlier as he did not believe he could file his Application while civil proceedings were ongoing. The Tribunal has held on a number of occasions that pursuing alternative recourses does not amount to a good faith reason to delay filing an Application with the Tribunal. See, for example, Saxon v. Amherstburg Police Service Board, 2015 HRTO 318. Further, I note that in any event, the applicant filed this Application before he received the Supreme Court of Canada’s decision in January 2017, refusing his motion for leave to appeal. Additionally, in this matter, there may in any event have been arguments to consider pursuant to section 34(11) of the Code.

24I do not find that the applicant’s delay was incurred in good faith, and it is not necessary for me to consider the respondent’s submissions regarding prejudice.

25Similarly, given the dismissal of this Application on the grounds of delay, it is not necessary for me to consider the respondent’s submissions regarding dismissal pursuant to either section 34.11 or section 45.1 of the Code.

order

26The Application is dismissed as untimely.