CITATION: Heath-Engel v. Seneca College, 2022 ONSC 4338
DIVISIONAL COURT FILE NO.: 516/21 DATE: 20220805
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
EMMA FRANCES HEATH-ENGEL
Ms Heath-Engel, self-represented
Applicant
– and –
SENECA COLLEGE and HUMAN
RIGHTS TRIBUNAL OF ONTARIO
Respondents
In Chambers, In Writing
REASONS FOR DECISION
D.L. Corbett J.
[1] The original notice of application in this matter failed to name any respondents, although it did identify the impugned decisions for which the applicant sought review in this court:
Dismissal of the complaint in HRTO File 2017-30459-I; and
Dismissal of the complaint in HRTO File 2020-41916-I; and
Dismissal of requests for reconsideration of these two decisions.
[2] The grounds listed in the initial notice of application were that the impugned decisions were “inhuman, cruel, and possible evidence of the HRTO supporting for human trafficking.”
[3] Although it is difficult to discern the nature of the complaint from the original notice of application, it appears that the applicant alleges that she was enrolled in a program at Seneca College, for which she was in receipt of some sort of financial support. It appears that Ms Heath-Engel received grades that required her to withdraw from the program for a year and resulted in the cessation of her financial support. It appears that Ms Heath-Engel alleges that these events happened to her while she was outside of Canada, teaching English as a second language, during which time she suffered serious injuries and was unable to apply herself to her studies. She claims that the respondent Seneca College was aware of this situation and failed to accommodate her situation in assessing her grades or deciding what to do in light of her academic results.
[4] Staff requested a properly drafted Notice of Application, identifying the parties to the application, and copies of the impugned decision(s), in accordance with this court’s current Notice to Profession. When these matters were not addressed as requested, the court made the following direction:
A notice of application must clearly state a "title of proceedings" that names the person(s) bringing the application (the "applicant", in this case, apparently, Ms. Heath-Engel) and the name(s) of the respondents, in this case the Human Rights Tribunal of Ontario (the "HRTO") and the respondents in the proceedings before the HRTO. It is not clear from the papers provided who the respondent(s) may be other than the HRTO.
The notice of application must clearly state the decision(s) the applicant is asking this court to review. In this case it appears that Ms Heath-Engel is asking this court to review a decision or decisions of the HRTO. The applicant needs to provide full particulars of these decisions: the date, the place where the decision was made, the name(s) of the decision-maker(s) and the nature of the decision(s) (for example, an order dismissing a complaint, or a decision refusing a request for reconsideration). The applicant should also provide this court with the neutral citation of the decision(s) - for example, in this case, "2019 HRTO 456" - and a copy of each decision from the HRTO that she is asking this court to review.
The notice of application cannot be accepted or processed by the Divisional Court without this information. No further steps shall be taken by staff in connection with this case until Ms Heath-Engel has provided the information as described in this direction.
[5] The applicant then provided a revised Notice of Application and copies of the following decisions and documents of the HRTO:
Heath-Engel v. Seneca College, 2021 HRTO 425, dismissing the 2020 complaint on the following basis:
The Application and the applicant’s submissions deal with her removal from Seneca College. The applicant states she was removed from her program because she had not passed enough courses and asserts discrimination must have been behind the removal. The materials filed by the applicant fail to point to any connection between her removal and a Code ground beyond the applicant’s bald assertion. (para. 5) On this basis the \hrto found it was “plain and obvious” that the claim could not succeed and dismissed it.
Heath-Engel v. Seneca College, 2020 HRTO 591, dismissing the 2017 complaint on the following basis:
The purpose of the summary hearing is to determine 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, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections. As 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 a breach of the Code. (paras. 17-18)
There was a five-week strike at Ontario Colleges in October and November 2017. It ended when Ontario passed back-to-work legislation. The applicant alleges that she experienced severe consequences because of the strike, including disruption in receipt of her OSAP funding, disruptions in her studies, and other difficulties, and that she was not accommodated by Seneca College in a manner that permitted her to continue in her program successfully. The HRTO found that the applicant was treated the same as other students in respect to the consequences of the strike, and that she had not identified grounds protected by the Code in respect to which Seneca had a duty to accommodate her. For example, the funding available through OSAP, and the impact of the strike on that funding, were not matters within the control of Seneca College. The death of the applicant’s father in the summer of 2017, while it may have left the applicant more vulnerable financially, does not give rise to a claim under a ground protected by the Code.
- A confirmation of settlement form pertaining to the 2017 proceeding, that is apparently signed on behalf of the respondent Seneca College. It is not signed on behalf of the applicant. It is accompanied by Minutes of Settlement pertaining to the 2017 complaint, which are not signed by either of the parties. These settlement documents are dated December 5, 2018, and thus predate the dismissal order in the 2017 proceeding, which was made in 2020 (described above).
[6] Having reviewed these materials and the revised Notice of Application, the court directed as follows:
Ms Heath-Engle submitted a Notice of Application for Judicial Review in April, 2021. The court had concerns with the application, which it set out in an email of June 10, 2021. The applicant then provided a fresh Notice of Application on June 30, 2021. This endorsement addresses the fresh notice of application, and presumes a commencement date of the application as of April 2021, when the original notice of application was delivered.
The applicant seeks to review two decisions of the Human Rights Tribunal of Ontario:
(a) HRTO File 17-30459-I, which was dismissed by order of the HRTO dated July 3, 2020 (2020 HRTO 591, the "First Decision"); and
(b) HRTO File 20-41916-I, which was dismissed by order of the HRTO dated June 3, 2021 (2021 HRTO 425, the "Second Decision").
The applicant alleges that she requested reconsideration of these decisions. Reconsideration of the First Decision was dismissed on November 23, 2020 (2020 HRTO 928). There is no record of a reconsideration decision respecting the Second Decision, though it is alleged that the reconsideration decision was dismissed on the same day as the entire file was dismissed, without reasons.
The Registrar is directed to give notice to the applicant pursuant to R.2.1.01 that the court is considering dismissing this application as frivolous, vexatious and an abuse of process for the following reasons:
The deadline to seek judicial review of the First Decision was six months (expiring on January 3, 2021). The deadline to seek judicial review of the reconsideration of the First Decision was thirty days (expiring December 23, 2020). The application for judicial review is too late in respect to these decisions. No motion has been brought to extend the time to bring these applications, and no basis on which such an extension could be granted is apparent in the application.
The Second Decision dismisses the complaint before the HRTO on the basis that it has no prospect of success. The reason given by the HRTO for this decision was that "[t]he materials filed by the applicant fail to point to any connection between her removal and a Code ground beyond the applicant’s bald assertion." In the Notice of Application, the applicant does not identify any basis on which this court could interfere with this finding of fact, which is reviewed in this court on a standard of deference.
Once the court has reviewed the applicant's response to these concerns it will issue its decision. Responding parties are directed not to deliver responding submissions unless this court subsequently directs otherwise. The applicant shall have thirty days to provide her submissions in response to the R.2.1.01 notice.
[7] Ms Heath-Engel responded, making the following points:
(a) She was unaware of the deadlines and in good faith has always wanted to challenge the impugned decisions;
(b) The issues are important to her, and she traces very grave consequences to her of Seneca’s conduct in the aftermath of the strike, and then latterly terminating her registration in the Seneca program.
(c) There was a settlement of the 2017 proceeding, which was not implemented because Seneca resiled from agreed payment terms.
[8] For the reasons that follow, the application as it pertains to review of the decision dismissing the 2017 proceeding is dismissed pursuant to R.2.1.
[9] The 2017 dismissal decision was rendered on July 3, 2020. Reconsideration was denied on November 23, 2020. The deadline to seek judicial review of the dismissal decision was January 3, 2021. The deadline to seek review of the reconsideration decision was December 24, 2020.
[10] As summarized in the reconsideration decision, the substance of the original decision was as follows (2020 HRTO 928, para. 6):
(a) The applicant was not employed by the respondent and therefore her allegation of discrimination in employment had no reasonable prospect of success.
(b) The applicant’s allegation related to funding and because of this, her allegation of discrimination in housing had no reasonable prospect of success.
(c) The applicant’s allegation of family status discrimination had no reasonable prospect of success because it related to the financial impact of not having a father and the difficult financial circumstances of her remaining family. The allegation did not relate to the status of being in a parent and child relationship, the definition of family status under the Code.
(d) The applicant’s allegations relating to her receipt of OSAP had no reasonable prospect of success because the Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program.
(e) The applicant did not point to evidence that the respondent harassed, misinformed her or did not respond promptly to her emails about funding because of her ancestry, ethnic origin, disability and/or family status. A delay in responding to emails about financial aid may not reasonably be considered to amount to a Code violation.
(f) The applicant did not point to evidence that she exercised a post-strike option or that she requested and was denied accommodation with respect to the post-strike options regarding her Code-grounds.
(g) The applicant’s allegations related to her ancestry, ethnic origin, disability and/or family status that contributed to her low-income status, OSAP and accessibility did not fall under the Code. The Tribunal could not decide general allegations of unfairness unrelated to the Code.
(h) The applicant’s allegation that a professor’s essay topic was discriminatory had no reasonable prospect of success because she was not treated differently by the professor from other students because of her ancestry, ethnic origin, disability and/or family status. In addition, the essay topic as expressed by the professor could not be characterized “with respect to services” within the meaning of section 1 of the Code. The applicant pointed to no evidence that the professor’s treatment of her or her academic work were related to Code grounds.
(i) The Chair’s decision to withdraw the applicant from two part-time courses because she was a full-time student could not be reasonably considered to amount to a Code violation.
[11] There is nothing in Ms Heath-Engel’s response to explain her delay to June 10, 2021 to commence her application in respect to the decisions dismissing the 2017 proceeding.
[12] The court could leave it to Ms Heath-Engel to bring a motion for an extension of time in which to seek judicial review, but doing this would be no kindness to Ms Heath-Engel. Such a motion would be bound to fail. On the face of the Notice of Application, there is no basis to grant an extension: there was no timely intention to apply for judicial review and no apparent merit to an application in any event: it is crystal-clear that the matters of which Ms Heath-Engel complains in respect to the 2017 decision concern her financial plight as a consequence of the strike and its aftermath, matters relating to her eligibility for OSAP, and her financial circumstances, none of which can ground a Code complaint against Seneca College. If Ms Heath-Engel were to bring an unsuccessful motion for an extension, she would be potentially liable for thousands of dollars in legal costs to Seneca College, costs for which her fee waiver in this court would not protect her.
[13] Dismissal under R.2.1 should only be made in the clearest of cases. If any basis had been stated on which the extension might be granted, I would give Ms Heath-Engel the option of bringing that motion. However, in respect to the dismissal of the 2017 claims, it is clear the extension motion cannot succeed, and thus that the application should be dismissed pursuant to R.2.1.
[14] I come to a different conclusion respecting the 2020 proceeding. That decision was made June 3, 2021, and no extension is required for it to proceed in this court. However, it is still not constituted properly in this court. Ms Heath-Engel has named two Tribunal members personally (and they are not necessary or proper parties when the HRTO itself is named). Ms Heath-Engel has failed to name Seneca College as a respondent, and Seneca is a necessary and proper party to the application.
[15] Taking all of this into account, this court orders as follows:
The application is dismissed as it relates to judicial review of the decisions dismissing the 2017 complaint;
The applicant shall amend the Notice of Application to remove Jennifer Scott and Vandana Patel as respondents, and to add Seneca College as a respondent;
The applicant shall serve the amended Notice of Application of the HRTO and on Seneca College, by email (to the email address for the counsel for Seneca College before the HRTO);
The respondent HRTO shall advise the parties and this court of the date by which it will serve its Record in respect to the decision dismissing the 2020 complaint (2021 HRTO 425).
[16] The parties are directed to take the steps set out above by September 9, 2022.
___________________________ D.L. Corbett J.
Date of Decision: August 5, 2022
DIVISIONAL COURT FILE NO.: 516/21 DATE: 20220805
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
EMMA FRANCES HEATH-ENGEL
Appellant
– and –
SENECA COLLEGE and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: August 5, 2022