Bagherian v. Human Rights Legal Support Centre, 2017 HRTO 1543

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Al Bagherian Applicant

-and-

Human Rights Legal Support Centre, Joanne Seamon and Shannon Sproule Respondents

DECISION

Adjudicator: David Muir Date: November 22, 2017 Citation: 2017 HRTO 1543 Indexed as: Bagherian v. Human Rights Legal Support Centre

APPEARANCES

Al Bagherian, Applicant Self-represented

Human Rights legal Support Centre, Joanne Seamon and Shannon Sproule, Respondents Megan Evans-Maxwell, Counsel

1The applicant filed an Application on January 16, 2017 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in goods and services because of colour, creed, place of origin, race and reprisal.

BACKGROUND

2On January 25, 2017 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction. The NOID noted the following issue arising from a review of the Application:

a. A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s). The Tribunal does not have jurisdiction over general allegations of unfairness unless the unfairness is connected, in whole or in part, to one of the grounds specifically set out in Part I of the Code (e.g. race, disability, sex, etc.); see, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389).

3The applicant filed submissions in response to the NOID.

4Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

5In a Case Assessment Direction (“CAD”) issued on April 6, 2017, I determined that it was not plain and obvious that the Application was outside of the Tribunal’s jurisdiction to decide. However, I also concluded that it was appropriate that the Tribunal direct, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

6The summary hearing process is authorized by Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which 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.

7Details 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.

8At that stage, the Application had not yet been delivered to the respondents. I also noted in the April 6, 2017 CAD that no Response to the Application had been filed and directed that the respondents need not do so until directed by the Tribunal. A copy of the Application was attached to the CAD.

DECISION AND ANALYSIS

9For the reasons the follow the Application is dismissed.

10The Summary Hearing was held on July 20, 2017 by telephone conference call. Both parties participated, the applicant under protest. The applicant believes that it is improper, he would say illegal, that a summary hearing be held prior to their being a full Response filed by the respondent. The applicant made the same argument in a prior Application. In 2017 HRTO 446, I responded to the argument as follows:

Similarly the applicant also queried how the Tribunal could deal with both of these Applications given that the respondent had not yet filed its Response to the second Application. The applicant articulated no particular reason for his concern. I ruled at the hearing that the lack of a Response was not an impediment to the summary/preliminary hearing from proceeding. In the absence of any basis to conclude that the applicant might be prejudiced in responding to the issues for adjudication at the summary/preliminary hearing, there was no reason not to proceed and consider the issues as they related to the two Applications. The holding of a summary/preliminary hearing is not dependent on a Response being filed. Indeed, the Tribunal’s Rules contemplate that a number of issues might be addressed prior to the filing of a full Response. In the circumstances of this case there is no basis to challenge my Order in the January 18, 2017 CAD.

11The applicant also argued that because the respondents have not filed a Response to the Application, it should not be entitled to make submissions in this case and I should not review any of the materials that the respondents filed in anticipation of this proceeding. Given that there is no basis to the applicant’s argument that it is improper for the summary hearing to continue in the absence of a Response, there is no basis to his related argument. I allowed the respondents to make submission and have reviewed the materials that were filed on their behalf prior to the summary hearing.

12In his Application the applicant alleges that the respondents discriminated against him in refusing to represent him in mediation and at a summary hearing in prior proceedings before the Tribunal.

13The particulars of the allegations are as follows:

a. That the respondent Ms. Sproule told him that the respondents in a prior proceeding would refuse to settle with him on terms acceptable to the applicant;

b. That Ms. Sproule and counsel for the respondents in the prior cases knew “about the unwritten and secret biased procedural rules” of the Tribunal;

c. That Ms. Sproule later advised the applicant that she would not represent the applicant at a mediation in the prior case because she believed that the case would not settle on terms acceptable to the applicant and because his case was weak. The applicant alleges that the personal respondent told him his case was weak because the respondent’s evidence would be preferred to his;

d. The applicant alleges that he challenged the decision to not represent him and threatened to pursue a claim against the respondents at the United Nations Council on Human Rights;

e. The applicant alleges that when he spoke to the respondent Ms. Seamon, she supported the decision taken by Ms. Sproule. The applicant alleges that “Ms. Seamon knew and the unprincipled lawyer of the respondents knew that the respondent’s lawyer will refuse to settler the (prior) complaint”;

f. The applicant alleges that he later called the organizational respondent and spoke to an unidentified person who told him that they would not represent him in any future matters because he had threatened to make a complaint. The applicant alleges that when he challenged this and alleged that it was reprisal the unidentified person indicated that the Centre would not represent him at the summary hearing because his case had no reasonable prospect of success; and,

g. The applicant alleges that someone from the Centre told him that it does not represent individuals at summary hearings.

14The Application also includes other allegations about the Tribunal and the parties in prior proceedings. These extraneous allegations are similar to those that are summarised in 2017 HRTO 446 and will not be recounted here. However, the nature of these allegations is not irrelevant to the result in this case. Accordingly I have reproduced here the conclusion to the narrative of the Form 1:

The legal counsels of the HRLSC know very well that the HRTO has a very well established biased organizational culture and practice of delivering predetermined decisions in favour of large corporations, government and public institutions and agencies and against the defenseless and basic insecure individual complainants. Therefore, these legal counsels don't dare to stand in the brutal path of HRTO in suppressing the complainants otherwise they will lose their jobs. This is one of the most indecent and ugliest unwritten rules of this quasi-judicial Ontario Government body of the Ministry of Attorney General and it is an obvious blow to democracy and freedom in a civil society. Remember, a just, fair and unbiased judicial system is the most fundamental and the most necessary pillar of a civil society.

15The applicant’s submissions added little to the narrative of the Application. On several occasions he stated that the issues had been predetermined and that the hearing was ceremonial. In his concluding remarks the applicant asked why the Tribunal had bothered with the hearing given that it routinely violates it’s own Rules of Procedure and the Code in the manner in which it deals with applications by members of disadvantaged groups.

16The issue raised by this Application and which the summary hearing was intended to address was whether or not the applicant could point to any evidence which would tend to establish a link between the alleged actions of the respondents and the grounds of discrimination cited. The applicant was unable to address this issue although I prompted him to do so myself. In my view there is no evidence to which the applicant can point which would tend to establish that a factor in the decision of the respondents to not represent the applicant at a mediation and at a summary hearing were any of the grounds cited by the applicant. The allegations of the applicant are bald and without factual foundation. The applicant’s remarks at the summary hearing, to the extent that they addressed the issue at hand, highlight the speculative nature of his claims. At the heart of the applicant’s theory of the case is his assertion that he was told by Ms. Sproule that the evidence of a white European person would be preferred over his. In his submissions to the NOID the applicant characterized the issues as follows:

The main theme of the argument of the Application is the fact that the individual lawyer Respondent of the HRLSC has taken side with and supported the White Euro-background individual Respondent in my HRTO case # 2015-21851-I, and this act was transformed into a verbal statement of credibility by the same corresponding individual lawyer Respondent of the HRLSC in this case at hand #2017-26708-I. She said she will not represent me because the white Euro-background Respondent is more credible than me because I am not of Euro-background. The individual lawyer Respondent from HRLSC refused to represent me in either of the mediation and the biased Summary Hearing that prejudiced me. She has a bias belief system in favour of the white Caucasian Euro-background Respondent over others. She did this by explicitly stating, that the HRTO file is about my words against the words of the individual Respondent Mr. Evan Weaver and the Tribunal will take his words because there is a question of credibility. Simply because, he is more credible than I am since he is a white Caucasian Euro background. This issue identifies specific act of discrimination within the meaning of the Code that is discrimination based on the grounds of race, ethnic origin, place of origin and colour.

17The applicant asserts in his pleadings that the lawyer “explicitly” stated that his testimony would be discounted by the Tribunal because the applicant was not a white European male. However, when I asked the applicant to clarify the words that were used, he did not repeat this assertion. He also acknowledged that he did not even know if the lawyer knew that the person in question was a white European male. The fact is that the applicant’s assertion at the summary hearing was that the lawyer did not say that the evidence of a white European would be preferred over his because he is not a white European.

18With regards to the claim of reprisal, the respondents advised that they have never declined to offer the applicant legal advice and in fact had provided advice to him just prior to the summary hearing. The applicant did not dispute this assertion and I accept it. In any event the applicant could not point to any evidence that whatever actions the respondent might have taken were intended to reprise for any complaints he might have made. In my view there is no merit at all to the applicant’s claim of reprisal.

19In my view this Application must be dismissed because there is no evidence to which the applicant can point which would tend to establish the necessary link between the actions of the respondent and the Code grounds the applicant has cited.