ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, caputo and SWINTON JJ.
B E T W E E N:
AYOK CHOL
Applicant
- and -
YORK UNIVERSITY
Respondent
Ayok Chol in person
Gina Papageorgiou, for the Respondent York University
Amyn Hadibhai, for the Ontario Human Rights Commission
HEARD at Toronto: January 23, 2004
1The Applicant has brought an application for judicial review of a decision of the Ontario Human Rights Commission dated October 9, 2001, in which the Commission decided, pursuant to s. 36(2) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, not to refer the Applicant’s human rights complaint to a board of inquiry. In the alternative, he seeks damages of $55,000,000.00 against York University.
2The Applicant made a human rights complaint against York University dated August 6, 1998, in which he claimed that he had been denied equal treatment with respect to services because of ancestry, colour, place of origin and race contrary to ss. 1 and 9 of the Code. The Applicant had been a doctoral student at Osgoode Hall Law School, and he claimed that he had been the victim of racist conduct in that he was not given grants; he was harassed by students, professors and senior staff; and he was stigmatized and confined to certain areas of the University.
3The Commission investigated the complaint and delivered a Case Analysis to the parties dated July 17, 2001. Mr. Chol was given an opportunity to comment on the Case Analysis, and he made submissions dated August 16, 2001 and August 28, 2001. These submissions were placed before the Commission.
4Pursuant to s. 36(1) of the Code, the Commission has a discretion whether to refer a matter to a board of inquiry. That subsection states:
Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.
5The Commission was of the view that the evidence in the case did not warrant referral of the complaint to a board of inquiry. It gave the following reasons for its decision:
There is insufficient evidence to indicate that the complainant was subjected to unequal treatment or harassment in services because of ancestry, colour, place of origin and race.
The evidence indicates that the complainant did not complete his thesis within the specified time.
The evidence also indicates that the complainant owed tuition and residential fees to the corporate respondent and, as a consequence, the complainant was not allowed to register in any courses offered by the corporate respondent.
6Pursuant to s. 37(1), a complainant may file a request for reconsideration within 15 days of the date of mailing the decision and reasons “or such longer period as the Commission may for special reasons allow.” In this case, the request for reconsideration was not made within the 15 day period, and by letter dated November 30, 2001, the Commission advised that it would not exercise its discretion to extend the time limit.
The Application for Judicial Review
7The standard of review of the exercise of discretion by the Human Rights Commission under sections 34, 36 or 37 of the Code is patent unreasonableness (Gismondi v. Ontario Human Rights Commission, 2003 21371 (ON SCDC), [2003] O.J. No. 419 (Div. Ct.) at paragraph 23; Pieters v. University of Toronto (2003), 2003 32238 (ON SCDC), 170 O.A.C. 180 (Div. Ct.) at paragraph 18).
8Under s. 36, the Commission is required to analyze the evidence and determine whether that evidence warrants referral to a board of inquiry. In this application for judicial review, the Court must determine whether the Commission’s decision was patently unreasonable, given the material that was before the Commission at the time it made its decision and which is found in the Record of Proceedings.
9The Applicant argues that the Commission was required to conduct an investigation of his complaint, and the process which was undertaken was flawed. Therefore, its decision was patently unreasonable.
10The Commission has a duty to act fairly in its decision making. In performance of that duty, the Commission provided the Applicant with a copy of the Case Analysis and gave him an opportunity to respond. The Applicant responded, and his detailed comments were placed before the Commission.
11It is not the role of this Court to weigh the evidence relating to the merits of the complaint; rather, that is the role of the Commission. In my view, the Case Analysis shows that there was an investigation of the Applicant’s complaint, and an analysis of the evidence was made by the Commission.
12There is evidence that the actions were taken by the University due to the Applicant’s inappropriate behaviour, the unsatisfactory performance of his duties and academic work, and his failure to pay fees and housing expenses. Having regard to the material before the Commission, it can not be said that its decision that the evidence was not sufficient to warrant referral to a board of inquiry was patently unreasonable. There was evidence before it which is capable of supporting its conclusion. Therefore, the application for judicial review is dismissed.
The Claim for Damages
13The Applicant claims $55,000,000.00 in damages against York University for loss of income, loss of reputation, loss of academic progress, public humiliation and mental anguish. As well, he seeks orders compelling the University to return grant and loan monies received on behalf of the Applicant and paid towards fees incurred by the Applicant while studying at the University.
14The Divisional Court has no jurisdiction to give this relief. The Divisional Court is a statutory court restricted to granting the relief set out in s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. It does not have the jurisdiction to award damages (Khalil v. Ontario College of Art (1999), 2000 26985 (ON SCDC), 183 D.L.R. (4th) 186 (Div. Ct.) at 188, 190). Section 2(1) restricts the relief to which an applicant for judicial review is entitled to one or more of the following:
(i) Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari; or
(ii) Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise or proposed or purported exercise of a statutory power.
15Therefore, this Court has no jurisdiction to grant the relief sought against the University.
Conclusion
16For these reasons, the application for judicial review is dismissed. If the parties are unable to agree with respect to costs, they may make brief written submissions within 30 days of the release of this decision.
Released: March , 2004
Swinton J.
Then J.
Caputo J.
COURT FILE NO.: 737/01
DATE: 20040316
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
tHEN, CAPUTO AND SWINTON JJ.
B E T W E E N:
AYOK CHOL
Applicant
- and -
YORK UNIVERSITY
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: March 16, 2004