Court File and Parties

CITATION: Heath-Engel v. Seneca College, 2023 ONSC 5441

DIVISIONAL COURT FILE NO.: 516/21

DATE: 20231004

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: EMMA HEATH-ENGEL, Applicant

AND:

SENECA COLLEGE and human rights tribunal of ontario, Respondents

BEFORE: Lococo, Matheson and Nishikawa JJ.

COUNSEL: Self-Represented Applicant Luisa L. D’Alessio, for the Respondent Seneca College Brian A. Blumenthal, for the Respondent Human Rights Tribunal of Ontario

HEARD at Toronto: September 26, 2023, by video-conference

ENDORSEMENT

[1] The applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO”) dated June 3, 2021, which dismissed her application against Seneca College.

[2] The applicant sought an adjournment of the hearing of this application for judicial review. The applicant recently brought a motion seeking to remove Mr. Blumenthal as counsel to the HRTO in this application. That motion was dismissed under r. 2.1 of the Rules of Civil Procedure. The applicant seeks an adjournment to challenge the dismissal of her motion to disqualify Mr. Blumenthal. She relies on Mr. Blumenthal’s past role as counsel in proceedings before the Criminal Injuries Compensation Board and the assertion that they knew each other as children. Mr. Blumenthal confirms his role as counsel but does not agree that they knew each other when they were children. Seneca College submits that there is no merit to the challenge against counsel, that this matter has been ongoing for a long time and there have been enough delays. In all the circumstances, the adjournment request was denied.

[3] There is also a preliminary challenge to some of the materials the applicant put forward in support of her application for judicial review, beyond the contents of the record of proceedings. That challenge is addressed in context below.

[4] In 2017, the applicant enrolled in the Police Foundations Program at Seneca College. In 2019, Seneca College notified the applicant that she had been withdrawn from the program in accordance with its Academic Policy. In turn, she also did not receive OSAP funding.

[5] The applicant then made an application to the HRTO, alleging that Seneca College discriminated against her because of ancestry, ethnic origin, disability, sexual solicitation, family status, marital status, age and association, contrary to the Human Rights Code, R.S.O. 1990, c. H.19. The applicant identified housing and employment as the areas of discrimination.

[6] In the description of discriminatory events, the applicant recounted that in June and July of 2019, when she was working as a teacher in Cairo, Egypt, she was targeted by traffickers, and was violently and sexually assaulted multiple times before coming back to Canada. The applicant said that on her return to Canada she had no work and very little money and her future direction was to continue her diploma program at Seneca College with student financial support through OSAP. She said that Seneca College kicked her out of her program because it decided that she had not passed enough courses. The applicant submitted that she believed that this was because of her ethnic origin, academic disability, a relationship with a man with a criminal record, and because she had been targeted for trafficking.

[7] The HRTO gave the applicant notice of an intent to dismiss her application because the application did not identify any specific acts of discrimination by Seneca College. The notice indicated that the application therefore appeared to be outside the HRTO’s jurisdiction. The applicant was invited to make submissions in response to the notice. She did so, submitting that she was discriminated against due to being targeted for trafficking and was punished by Seneca College for escaping.

[8] In the Decision, the HRTO found that the applicant’s submissions reiterated the allegations in the application but did not address the absence of a link with the stated discriminatory grounds. The HTRO found that it was plain and obvious that the application did not fall within its jurisdiction for lack of a connection between her removal from the Seneca College program and the assertion of discrimination.

[9] On this application for judicial review, the issue is whether or not the Decision was reasonable as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

[10] The applicant submits in this Court that she was the subject of discrimination on a number of grounds, including because of her age, her partial Indigenous heritage, her disability and as a single woman. She recounted the events in Cairo in some detail, and the difficulties she experienced arriving back in Canada. She submitted that her life would have progressed if she had received the OSAP funding for her Seneca College program and been able to complete her program. She submitted that she will never recover from what happened in Cairo because of Seneca College.

[11] In support of her submissions, the applicant filed email correspondence with Seneca College as well as correspondence with the Canadian Embassy and Canadians Victimized Abroad. There is a dispute about whether these materials were before the HRTO. The HRTO submits that these materials are supplemental to the record and do not fall within the categories of evidence that are permitted in an application for judicial review, as set out in Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused, [1980] 2 S.C.R. viii.

[12] The additional materials show a dialogue between the applicant and Seneca College about the application of the Academic Policy to the applicant’s academic record, based upon which Seneca College made the decision to withdraw the applicant from the program. The emails indicate that that the applicant raised the events in Cairo and her heritage among other things, and that she pursued an appeal of a grade and the withdrawal from the program unsuccessfully. Although these materials provide more detail, the topics had been part of the application to the HRTO.

[13] The question before this Court is whether the HRTO’s Decision was reasonable. As set out in Vavilov, at para. 13, reasonableness “finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.”

[14] Further, as set out in Vavilov at para. 100, the “burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.”

[15] In this case, the HRTO was addressing an application that asserted discrimination in housing and employment. With respect to employment, the applicant referred to her teaching job, but it was not with Seneca College. With respect to housing, she referred to returning to Canada and that she was depending on student funding to set herself up in an apartment.

[16] In the Decision, the HRTO noted that its jurisdiction is limited to enforcement of the Human Rights Code, and to fall within the HRTO’s jurisdiction, the application must contain allegations that connect Seneca College’s conduct to one or more prohibited grounds. The HRTO noted that the applicant asserted that she was removed from her program because she had not passed enough courses and she asserted that discrimination must have been behind the removal. However, the HRTO found that the materials she filed did not point to a connection between her removal from the program and the Human Rights Code grounds, beyond bald assertions. It therefore fell outside the HRTO’s jurisdiction. In reaching this conclusion, the Decision does show a rational chain of analysis and the requisite degree of justification, intelligibility and transparency.

[17] The applicant has not shown that the Decision is unreasonable, and this conclusion is unchanged by the disputed evidence.

[18] This application is therefore dismissed, with no order as to costs.

Lococo J.

Matheson J.

Nishikawa J.

Date: October 4, 2023