CITATION: Bagherian v. Seneca College et al, 2023 ONSC 1269

DIVISIONAL COURT FILE NO.: 431/22

DATE: 20230222

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ALI BARADARAN BAGHERIAN Applicant

AND:

SENECA COLLEGE, ROMEL CIPRIANI, HUMAN RIGHTS LEGAL SUPPORT CENTRE AND HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents

BEFORE: O’Brien J.

COUNSEL: A. Bagherian, Self-Represented K. Marshall, for the Respondents, Seneca College and Mr. Cipriani M. Evans Maxwell, for the Human Rights Legal Support Centre B. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario

HEARD: In-Writing

ENDORSEMENT

Overview

[1] On January 12, 2023, the Court issued a notice under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as it was considering making an order dismissing the Applicant, Mr. Bagherian’s, application for judicial review with respect to certain of the decisions he sought to review.

Background

[2] By way of background, at a case conference on December 5, 2022, Mr. Bagherian indicated that he had filed an amended Notice of Application to seek judicial review of additional decisions of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) dating back to 2017 and 2019. Mr. Bagherian’s initial Notice of Application only sought to judicially review a decision of the HRTO dated June 21, 2022. There is no issue with this decision, nor with an additional decision dated February 23, 2022. However, counsel for the HRTO raised a concern about the timeliness of the other decisions Mr. Bagherian sought to review and indicated he may request to have them dismissed via r. 2.1.

[3] By email to the Court dated December 9, 2022, Mr. Bagherian provided copies of the new decisions that he was seeking to judicially review. In his email, among other things, he stated as follows:

Please see attachment 9.2 for the order of Justice Matheson on Oct. 20, 2022 to the applicant to send the amended documents including all the previous case orders and additions of the five HRTO decisions. Justice Matheson ordered and endorsed the acceptance of all the five HRTO decisions for Judicial Review. This is an interlocutory order and binding. If any party likes to challenge this decision, they should file an appeal of the interlocutory order if all parties agree and if both the Court of Appeal and the Divisional Court have provisions for such appeal.

[4] Justice Matheson’s October 20, 2022 order reads in part as follows:

The applicant’s notice also generally refers to seeking to set aside “three previous decisions involving Seneca College” and one prior decision involving the “Human Rights Legal Support Centre”. None of those decisions are referred to more specifically and no corresponding decisions have been submitted to the court as required by section D.2-2 c of the Notice to the Profession for this court. https://www.ontariocourts.ca/scj/notices-andorders-covid-19/div-ct-feb2021/

If the applicant wishes to challenge any decisions other than the June 21, 2022 of HRTO, the applicant shall deliver an amended notice of application with proper particulars and comply with the Notice to Profession within one week from today. The named respondent may also have to be amended. The applicant requested, by earlier email, to defer moving forward with his application until December of 2022. That is not agreed. The HTRO has already delivered the record of proceedings in respect of the above June 21, 2022 decision. All parties shall submit their proposed schedules for the exchange of court materials within two weeks from today, after which the court may set the schedule.

[5] By letter dated December 13, 2022, the HRTO requested that the Applicant’s application to review three decisions from 2017 and 2019 be dismissed pursuant to r. 2.1. By letter dated December 14, 2022, the Human Rights Legal Support Centre, which was a respondent in one of the 2017 HRTO decisions, took the same position. Counsel for the Respondents Seneca College and Mr. Cipriani also made a request for dismissal pursuant to r. 2.1 by letter dated December 23, 2022.

[6] Following the receipt of the letters from the Respondents, Mr. Bagherian provided various emails and submissions to the Court. However, the Court gave him a more formal opportunity to respond and address the identified issues when it issued the r. 2.1 notice.

Rule 2.1 Notice

[7] The Court’s r. 2.1 notice read as follows:

The Court has issued a notice under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as it is considering making an order dismissing the application for judicial review with respect to certain of the decisions the Applicant seeks to review as out of time.

The applications the Court is considering dismissing are as follows:

• The application for judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO”) in the case of Bagherian v. Seneca College of Applied Arts and Technology dated April 21, 2017, 2017 HRTO 446

• The application for judicial review of the decision of the HRTO in the case of Bagherian v. Human Rights Legal Support Centre dated November 22, 2017, 2017 HRTO 1543

• The application for judicial review of the decision of the HRTO in the case of Bagherian v. Seneca College of Applied Arts and Technology dated February 19, 2019, 2019 HRTO 292

The Court is considering staying or dismissing these applications under r. 2.1.01 because they appear on their face to be frivolous, vexatious or otherwise an abuse of process. The Court raises these concerns for the following reasons:

• These decisions of the HRTO were made in two cases over five years ago and in the third case well over three years ago.

• Although prior to July 1, 2020 (when the Judicial Review Procedure Act was amended), there was no specific time period for bringing an application for judicial review, judicial review is a discretionary remedy. A Court may refuse to grant judicial review on the basis of excessive delay.

• The cases cited at 2017 HRTO 446 and 2019 HRTO 292 were themselves found to be abuses of process.

The striking of these applications, should it occur under r. 2.1, would not preclude the applicant from continuing with the judicial review of the HRTO’s decision dated June 21, 2022, which is how he originally commenced his proceeding before amending his Notice of Application. The additional decisions listed above could also still be referred to as background information.

Although Mr. Bagherian has already provided various emails to the Court in response to the requests for dismissal pursuant to r. 2.1 by the parties, this notice provides him with another opportunity to address the Court’s concerns. Mr. Bagherian should clearly address the question of why he has waited so long to seek judicial review of decisions from over three to five years ago. He should also address why these applications should proceed in the context of the concern about delay when two of the underlying decisions themselves were dismissed as abuses of process. The Applicant is asked to address these concerns in his response to the notice issued under r. 2.1.

In addition, in correspondence to the Court dated January 2, 2023, which he titled “rebuttal,” and which was sent in response to the request for dismissal pursuant to r. 2.1 by the Respondent Seneca College, Mr. Bagherian wrote in part:

I, the applicant, hereby demand the Honourable Justice O'Brien to recuse herself from this case because she has demonstrated unacceptable and unjustified bias in favour of the government institution and against the unrepresented homeless applicant and she no longer is fit to either review or decide in this case and if she doesn't recuse herself from this case, a motion will be delivered accordingly. An appeal at the Court of Appeal may follow. A complaint may also be filed against Honourable Judge O'Brien at the Canadian Judicial Council.

These statements were made in response to a direction from the Court following a case conference on December 5, 2022. At the case conference, counsel for the HRTO raised a concern about the timeliness of the proposed amendments to Mr. Bagherian’s Notice of Application because of the addition of the 2017 and 2019 decisions. Counsel raised the prospect of requesting a dismissal of the additional applications pursuant to r. 2.1. The Court subsequently directed in part as follows:

By December 23, 2022, the responding parties shall provide their position briefly in writing with respect whether they wish to take any steps regarding the timeliness of the amended Notice of Application. This is an opportunity to advise the Court if they wish to initiate a procedure such as a motion. It is not intended for detailed submissions.

It is of course open to Mr. Bagherian to bring a complaint to the Canadian Judicial Council. However, it is not appropriate for him to threaten to do so in communications to the Court. It is also open for Mr. Bagherian to seek that I recuse myself from this case, but, again, he is not to do so by “demand” in improper communications to this Court. He may do so by bringing a proper motion, which is initiated by filing a notice of motion.

Mr. Bagherian’s Submissions in Response to the R. 2.1 Notice

[8] Mr. Bagherian makes a number of submissions in response to the r. 2.1 Notice, which can be summarized as follows:

(a) Mr. Bagherian is entitled to protection under the articles 7 and 23 of the United Nations Universal Declaration of Human Rights.

(b) Mr. Bagherian has identified a possible criminal element by the respondent’s organization’s president.

(c) The use of the term “abuse of process” by the HRTO adjudicators does not mean they were correct and should not be used as substantiation by the Divisional Court.

(d) With respect to the reasons for his delay in seeking judicial review of the 2017 and 2019 decisions, Mr. Bagherian states that he “did not know what he should have done and no public agency would have provided assistance other than rudimentary advice…”. Instead of applying for judicial review, Mr. Bagherian applied numerous times for re-employment by his former employer, the Respondent Seneca College.

(e) The question of whether the 2017 and 2019 decisions could be judicially reviewed was already determined by Matheson J. and therefore was res judicata.

(f) I am seeking vindication against Mr. Bagherian for his expressing an intention to complain about me to the Canadian Judicial Council.

(g) I am discriminating against Mr. Bagherian as a man. Mr. Bagherian writes: “Honourable Judge O’Brien had apparently worked for women’s rights before but she doesn’t have any understanding and consequently no respect for the men’s right. She is most probably a feminist and as such she is displaying anti men attitude and consequently a violation of Ontario Human Rights Code in the area of service and the grounds of sex, race, place of origin.”

[9] The responding parties were offered an opportunity to respond to Mr. Bagherian’s submissions. They all declined the offer.

Analysis

[10] I conclude that Mr. Bagherian’s application for judicial review of the 2017 and 2019 decisions should be dismissed pursuant to r. 2.1.01.

Proceedings before HRTO

[11] Mr. Bagherian has initiated multiple proceedings before the HRTO. Two HRTO decisions were from 2022 and do not raise an issue of timeliness. The other three were decided several years ago. Mr. Bagherian has significantly delayed in seeking judicial review of them.

[12] The first proceeding was an application filed in 2015 against Seneca College. Mr. Bagherian alleged discrimination in employment because of race, colour, ethnic origin and reprisal. Mr. Bagherian had been a partial load faculty member at the time and claimed he was denied two opportunities for full-time employment for discriminatory reasons. He also alleged he was denied a contract in reprisal for having raised a human rights issue in an internal complaint.

[13] In early 2017, Mr. Bagherian filed a new application asserting reprisal by Seneca College for having filed the initial application.

[14] In a decision dated April 21, 2017, the two applications were consolidated and then dismissed as an abuse of process. The Tribunal found Mr. Bagherian’s ongoing inability to participate in the proceeding in a respectful and courteous manner to constitute an abuse of process. His conduct, which was described in detail in the Tribunal’s decision, included baseless allegations that the respondents were misappropriating public funds, personal ad hominem attacks on the individual respondents and other officials of Seneca College, complaints about counsel to the Law Society of Upper Canada and attacks on the Tribunal and its process.

[15] In January 2017, Mr. Bagherian filed an application against the Human Rights Legal Support Centre alleging discrimination in goods and services because of colour, creed, place of origin, race and reprisal. He claimed that the respondent had discriminated against him in refusing to represent him at a mediation and at a summary hearing in the prior proceedings before the Tribunal. In a decision dated November 22, 2017, the Tribunal dismissed the application following a summary hearing. In its reasons, the Tribunal considered it significant that Mr. Bagherian had made allegations about the Tribunal and parties similar to those made in the prior proceedings. It also found that there was no evidence which would tend to establish the necessary link between the actions of the respondents and grounds under the Human Rights Code, R.S.O. 1990 c. H. 19 (the “Code”).

[16] In December 2017, Mr. Bagherian filed a further application against Seneca College alleging reprisal for filing his two previous applications by refusing to hire him. By decision dated February 19, 2019, the Tribunal dismissed the application for raising essentially the same facts and issues raised in the previous proceedings. The HRTO expressed the view that the application was an attempt to relitigate previous applications and, as such, constituted an abuse of process. To the extent new acts of reprisal were alleged, the matter was dismissed as having no reasonable prospect of success.

[17] In 2021, Mr. Bagherian initiated another application, this time against Mr. Cipriani, a department Chair at Seneca College. Mr. Bagherian alleged reprisal in employment, goods and facilities contrary to the Code. He alleged that when he sent employment applications to the respondent’s email address, the respondent either did not respond or in one instance advised that all teaching assignments had been confirmed and that he would keep his information on file. In a decision dated February 23, 2022, the Tribunal dismissed the application as failing to link the respondent’s actions to a ground under the Code.

[18] Mr. Bagherian then sought reconsideration of the February 23, 2022 decision. In a decision dated June 21, 2022, the request for reconsideration was dismissed. The Tribunal found that Mr. Bagherian had not shown compelling or extraordinary circumstances to warrant granting reconsideration. Neither of the 2022 decisions are at issue in this r. 2.1 review.

Legal Principles: Delay in Seeking Judicial Review

[19] Administrative decisions made prior to July 1, 2020 are subject to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) as it existed just before that date: see s. 5(4). The JRPA as it existed prior to July 1, 2020 does not prescribe a time period for bringing an application for judicial review. Accordingly, it is up to the Court to decide whether to deny judicial review, a discretionary remedy, based on excessive delay. In exercising its discretion to dismiss applications on this basis, the Court will consider three factors: (i) the length of delay; (ii) the reasonableness of any explanation offered for the delay; and (iii) any prejudice suffered by the respondent as a result of the delay: Becker v. WSIAT, 2012 ONSC 6946 (Div. Ct.); Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756, at para. 42. This Court has regularly treated applications commenced six months after the decision as presumptively excessive in length: Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108 (Div. Ct.) at para. 35.

[20] An application for judicial review should only be dismissed under r. 2.1 in the clearest of cases. If there is an arguable basis that the court would exercise its discretion to grant judicial review, a dismissal under r. 2.1 is not appropriate.

[21] In Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563, this Court dismissed a motion to extend time to seek judicial review from decisions of the Ontario Labour Board pursuant to r. 2.1 when the decisions were made approximately 6-7 years earlier.

Application of Legal Principles

[22] In my view, the 2017 and 2019 decisions of the HRTO fall within the “clearest of cases” where there is no reasonable prospect the court would exercise its discretion to grant judicial review.

[23] Turning to the factors a court will consider in dismissing an application for delay, the Respondents in a r. 2.1 review are not entitled to provide evidence. They also chose in this case not to provide submissions. In this context, starting with the third of the three factors, I assume they will not be able to show any specific prejudice caused by Mr. Bagherian’s delay in seeking judicial review of the 2017 and 2019 decisions.

[24] However, the applications for judicial review are doomed to fail on the other factors. The delay is inordinate, being well over five years from the 2017 decisions and over four years from the 2019 decision. Mr. Bagherian has not provided any credible explanation for the delay. His only justification is that he is self-represented and did not know how to proceed. However, he has initiated repeated proceedings before the HRTO and was able to determine that judicial review was the appropriate procedure for the HRTO’s June 2022 decision. Also, in the HRTO’s 2019 decision, the adjudicator expressly advised Mr. Bagherian about proceeding by judicial review, stating, “[t]he applicant’s recourse, if [he] was unhappy with the previous decision of the Tribunal, was to seek to have that decision judicially reviewed.” At that time, Mr. Bagherian would have been late to judicially review the 2017 decisions but not nearly as late as he is now. He also was given notice of the appropriate process with respect to the 2019 decision.

[25] In determining that there is no reasonable prospect that the Court would exercise its discretion to grant judicial review, I also take into account that in two of the HRTO decisions that are significantly out of time, his applications were dismissed as abuses of process. Mr. Bagherian’s history of abusive conduct and of rolling forward issues from prior proceedings further diminish the chances that judicial review would be granted in the overall interests of justice.

[26] Finally, a dismissal of these applications under r. 2.1 would not prevent Mr. Bagherian’s applications with respect to the Tribunal’s 2022 decisions from proceeding. He also would not be precluded from drawing the court’s attention to the 2017 and 2019 decisions by way of background, though he would be barred from obtaining any remedies specifically with respect to those decisions.

Response to Mr. Bagherian’s Submissions

[27] I respond to the additional submissions provided by Mr. Bagherian as follows:

(a) Discrimination: Mr. Bagherian claims he has been discriminated against because of the initiation of the r. 2.1 process. Rule 2.1 is an available process under the Rules of Civil Procedure. Mr. Bagherian has made bald allegations and insinuations of improper conduct without detailing any specific basis for the concern in this case.

(b) Complaint to Canadian Judicial Council: The r. 2.1 process was raised by the responding parties. When Mr. Bagherian indicated his intention to make a complaint to the Canadian Judicial Council, he was told it was open to him to do so. Other than Mr. Bagherian’s bald allegations, again, there is no specific basis to tie the r. 2.1 notice to his threats of a complaint to the Canadian Judicial Council.

(c) Allegation of Possible Criminal Element in the Respondent’s Organization: This is another bald allegation that is irrelevant to the applications for judicial review.

(d) Res Judicata: I do not accept that Matheson J. already found the 2017 and 2019 decisions to be judicially reviewable. Matheson J. simply stated that if Mr. Bagherian wished to challenge any other decisions, he was required to deliver an amended notice of application “with proper particulars.” Matheson J. does not appear to have been aware of the dates of the other decisions Mr. Bagherian was seeking to judicially review. In any event, directing him to file an amended notice of application does not represent a determination of the viability of his claims.

Disposition

[28] The time to seek judicial review of the 2017 and 2019 decisions has long passed. The applications are doomed to fail. Permitting them to proceed would put the responding parties and administration of justice to needless expense. Mr. Bagherian’s applications for judicial review of the 2017 and 2019 decisions of the HRTO therefore are dismissed pursuant to r. 2.1.01 without costs.

O’Brien J

Date: February 22, 2023