Konesavarathan v. Her Majesty the Queen (Ontario), 2018 ONSC 3593

CITATION: Konesavarathan v. Her Majesty the Queen (Ontario), 2018 ONSC 3593

DIVISIONAL COURT FILE NO.: 463/17 DATE: 20180608

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

GORDON R.S.J., THORBURN and CAVANAGH JJ.

BETWEEN:

KOVARTHANAN KONESAVARATHAN

Kovarthanan Konesavarathan, acting in person

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY LIZ SANDALS, KATHLEEN WYNNE, ERIC HOSKINS AND YASIR NAQVI, ONTARIO MEDICAL ASSOCIATION, ASSOCIATION OF INTERNATIONAL PHYSICIANS AND SURGEONS OF ONTARIO and THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Rina M. Li, for the Respondent, Her Majesty the Queen in Right of Ontario

James Schneider, for the Respondent, The Human Rights Tribunal of Ontario

Respondents

HEARD at Toronto: June 6, 2018

GORDON R.S.J.

Overview

[1] The Applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) dated February 13, 2017, and the reconsideration of that decision dated June 2, 2017. In those decisions the HRTO held that the Applicant had no individual standing to proceed with his application and no ability to bring an application in the public interest.

Background

[2] The Applicant is a foreign trained medical doctor whose credentials are not recognized in Ontario. In order to practice medicine in Ontario he is required to pass an equivalency exam and to complete a year of residency through an accredited medical school program. He has successfully completed his equivalency exam but has not been successful in obtaining a residency position.

[3] In his application to the HRTO, the Applicant alleges discrimination of the basis of place of origin. He says that the Respondents have discriminated against him and other foreign trained doctors by failing to create or allocate a sufficient number of residency placements to accommodate them.

[4] Before a full hearing was undertaken, the HRTO issued a Notice of Intent to Dismiss his application on the basis that: (i) he failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the Respondents; and (ii) he failed to allege in his application that any of his rights had been infringed. The Applicant responded to the notice but to no avail. His application was dismissed on the basis that he had no standing to bring it because he had failed to allege an infringement of his rights. The issue of whether or not he identified any specific acts of discrimination within the meaning of the Code was not addressed in the Tribunal’s decision.

[5] The Applicant made a request for reconsideration. The HRTO determined on reconsideration that (i) his was a public interest application for which he had no standing and, in any event (ii) he did not identify any factor that would outweigh the public interest in the finality of Tribunal decisions. The Tribunal dismissed the request for reconsideration.

[6] The Applicant seeks judicial review of the decisions of the HRTO on the following grounds: (1) Its finding that he had no personal standing to bring the application was incorrect and unreasonable; (2) Its finding that only the Ontario Human Rights Commission can bring a public interest application under the Human Rights Code is incorrect and unreasonable; (3) The HRTO was and is biased against him; and (4) He was denied procedural fairness.

Standard of Review

[7] We agree with the Respondents that the standard of review in this instance is reasonableness. Although the Applicant urged us to find that what is involved is a question of jurisdiction that would attract a standard of correctness, we do not agree. In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association 2011 SCC 61, the Supreme Court of Canada confirmed that unless the situation is exceptional, the interpretation by a tribunal of its own statute or statutes closely connected to its function, with which it will have particular familiarity, should be presumed to be a question of statutory interpretation subject to deference on judicial review.

[8] In Shaw v. Phipps, 2012 ONCA 155 the Ontario Court of Appeal confirmed that the standard of reasonableness applies to the HRTO’s interpretation and application of human rights law, with the ultimate question being whether the result reached falls within the Dunsmuir “range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

[9] In this instance, the HRTO was interpreting sections 34 and 35 of the Code and had to determine whether the facts pleaded in the application came within it. This is a question of statutory interpretation involving its home statute. The applicable standard of review is reasonableness.

The Decisions of the Tribunal

[10] In its decision of February 13, 2017, the Tribunal acknowledged that an application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction.

[11] The Tribunal held that an individual may bring an application under the Human Rights Code in two circumstances: First, under section 34(1), if he or she believes that any of his or her rights under Part 1 have been infringed; or secondly, under section 34(5) on behalf of another person provided that other person would have been entitled to bring the application under subsection (1) and consents to the application. The Tribunal held that the Applicant did not file his application on behalf of another person and, therefore, that section 34(5) is not applicable.

[12] The Tribunal also held that a person whose rights have not been infringed may not file an application that he or she believes to be in the public interest and that only the Ontario Human Rights Commission has standing to bring “public interest applications” pursuant to section 35 of the Code.

[13] The operative part of the decision provides as follows:

In response to the NOID, the applicant stated that he is a member of a group, IMDs, that has experienced discrimination because of the manner in which the respondents, the province of Ontario in particular, allocate residency positions. The applicant does not allege, however, that he had applied for and been denied a residency position. Consequently, even assuming there is merit to the applicant’s allegations of systemic discrimination generally, there is no indication that his own rights have been infringed and he therefore does not have standing to bring this application.

Analysis

The Issue of the Applicant’s Personal Standing

[14] On consideration of a Notice of Intention to Dismiss, the HRTO is to assume the truth of the facts alleged in the application and determine whether, based upon those facts, it is plain and obvious that the Applicant cannot succeed. In this instance the HRTO determined that the Applicant could not succeed because he lacked standing. In particular, it found that he lacked standing because he had not alleged that he had been affected by the discrimination which was alleged.

[15] The issue before us is whether this decision was reasonable. On review of the application we note that the Applicant identified himself as a member of a group that he alleged suffered discrimination arising from the inadequate number of residency positions created for foreign trained medical doctors. His application included, at tab 4 of Schedule A, two emails from the Ontario Family Medicine Residency Programs in which he was given notice in 2014 and 2015 that his application in each year for a residency position had been declined.

[16] Although these emails were referred to by the Applicant in his application as offering support for the fact that there are an inadequate number of residency positions created for foreign trained doctors, they also confirm that he alleged that his application for residency was affected by the discrimination alleged. For the Tribunal to have reviewed his application in its entirety and determine that the Applicant had not alleged that he had applied for and been denied a residency position was unreasonable having regard to these specific emails.

Who May Bring a “Public Interest” Application Under the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

[17] A fair reading of the decision of the Tribunal is not that a person whose rights have been infringed cannot bring an application which has a public interest component. Rather, the Tribunal held that in the absence of someone who is alleging infringement of his or her rights, only the Commission may apply for an order under section 45.3, and then only if it is of the opinion that it is in the public interest to make an application and that an order under section 45.3 could provide an appropriate remedy.

[18] The issue is not whether we agree with this analysis or conclusion, but whether it is reasonable. In our view, the Tribunal’s conclusion falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law.

The Issue of Bias

[19] The Applicant has alleged bias by the HRTO in general and the specific adjudicator who dealt with his application.

[20] We agree with the submissions made by counsel for the Tribunal that the threshold for a finding of real or perceived bias is high and must be based on more than mere suspicion or the dismissal of the Applicant’s claim or claims.

[21] In our view, the allegations of bias made by the Applicant are completely speculative and devoid of evidentiary foundation.

The Issue of Procedural Fairness

[22] The Applicant alleged that the HRTO is engaged in “systemic oppression” of self-represented and racialized applicants resulting in procedural unfairness to them.

[23] In our view, the Applicant’s allegations of unfairness and oppression as a self-represented and racialized applicant are both unsubstantiated and speculative and do not amount to any breach of the duty of procedural fairness.

Other Issues

The Proposed Constitutional Question

[24] The Applicant sought to have this court determine the following constitutional question:

The Applicant intends to question the constitutional applicability of the sections 35 and 45.7 of the Ontario Human Rights Code and the Common Law of Public Interest Standing and to claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to the act or omission of the Government of Ontario in particularly of the Administrative Agency, the Human Rights Tribunal of Ontario, the Ministry of Attorney General Ontario.

[25] The question as framed does not call into question the constitutional validity or constitutional applicability of the Human Rights Code. Although it makes reference to claiming a remedy under section 24(1) of the Charter, it fails to specify the remedy sought. In the circumstances, the question posed does not meet the requirements of Section 109 of the Courts of Justice Act.

The Affidavit of the Applicant

[26] The Applicant filed an affidavit in support of the application for judicial review. The Court of Appeal for Ontario has held that affidavit evidence is admissible on a judicial review only when necessary to show that a statutory ground of review is applicable or in the exceptional and rare circumstance where there is a complete absence of evidence on an essential point amounting to jurisdictional error or to show a breach of natural justice that cannot be proved by mere reference to the record [see Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.)].

[27] Except for the limited purpose of establishing whether and to what extent the Applicant has been the subject of bias, the affidavit does not meet that test. Accordingly, we accepted the affidavit for that sole purpose.

Conclusion

[28] The application for judicial review is granted on the basis that the Tribunal’s finding that the Applicant lacked standing to make the application was unreasonable. The matter is therefore remitted back to the HRTO.

[29] The Applicant indicated that he did not seek costs and accordingly no order as to costs is being made.

___________________________ GORDON R.S. J.

I agree

THORBURN J.

I agree

CAVANAGH J.

Date of Release: June 8, 2018

CITATION: Konesavarathan v. Her Majesty the Queen (Ontario), 2018 ONSC 3593

DIVISIONAL COURT FILE NO.: 463/17 DATE: 20180608

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GORDON R.S.J., THORBURN and CAVANAGH JJ.

BETWEEN:

KOVARTHANAN KONESAVARATHAN

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY LIZ SANDALS, KATHLEEN WYNNE, ERIC HOSKINS AND YASIR NAQVI, ONTARIO MEDICAL ASSOCIATION, ASSOCIATION OF INTERNATIONAL PHYSICIANS AND SURGEONS OF ONTARIO and THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

GORDON R.S.J.

Date of Release: June 8, 2018