Court File and Parties

CITATION: Lisikh v. HRTO, 2024 ONSC 2177

DIVISIONAL COURT FILE NO.: 512/23

DATE: 20240415

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Gleb Lisikh Applicant (Moving Party)

AND:

His Majesty the King in Right of Ontario as Represented by the Ministry of Education Respondent

BEFORE: Justice O’Brien

COUNSEL: G. Lisikh, Self-Represented E. Guilbault, Counsel for the Respondent

HEARD: Motion In-Writing

ENDORSEMENT

Overview

[1] The Applicant, Mr. Lisikh, has brought a motion for an extension of time to seek judicial review of two decisions of the Human Rights Tribunal of Ontario. The first decision is dated November 10, 2022 and the second is a reconsideration decision dated February 28, 2023. Pursuant to s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), Mr. Lisikh had 30 days to file an application for judicial review. Mr. Lisikh’s notice of motion was served on October 23, 2023, which was almost 7 months after his deadline.

[2] Mr. Lisikh’s application to the Tribunal was related to a summer education program provided at several Ontario school boards. Mr. Lisikh’s son was interested in the program. The program was described as providing opportunities to Canadian youth of Black and African-Canadian heritage. Mr. Lisikh’s son did not fall within this group. Mr. Lisikh alleged that the program was discriminatory because it was available to Black youth only.

[3] After receiving Mr. Lisikh’s application, the Tribunal sent a letter to Mr. Lisikh asking him to file a particular form to confirm the application was on behalf of a minor. Mr. Lisikh responded that he was not applying on behalf of his child.

[4] The Tribunal then sent a Notice of Intent to Dismiss letter to Mr. Lisikh explaining that the application did not identify any acts of discrimination within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code). He was given a deadline to identify the alleged breaches and/or file a form to confirm he was applying on behalf of his child. In his response to this form, Mr. Lisikh identified the act of discrimination as offering the program to a particular race and not to other races. He again stated that the application was not on behalf of his child.

[5] The Tribunal dismissed the application without a hearing on two bases:

(1) Mr. Lisikh did not have standing to bring the application. The Tribunal reasoned that Mr. Lisikh had confirmed in writing that he was not bringing the application on behalf of his child. He had not faced any form of discrimination himself and had no standing to bring an application as a public interest complaint.

(2) The summer program met the criteria of a special program under the Code and therefore was not discriminatory.

[6] Mr. Lisikh requested reconsideration of the Tribunal's decision to dismiss his application. The Tribunal dismissed the request for reconsideration because Mr. Lisikh did not provide any new facts or evidence and did not cite any case law or procedure that would contradict the Tribunal's decision, nor did he rely upon any factor that would outweigh the public interest in the finality of the Tribunal's decisions. Mr. Lisikh merely expressed his disagreement with the decision.

Analysis

[7] Subsection 5(2) of the JRPA authorizes the court to extend the time for making an application for judicial review where there are apparent grounds for relief and no substantial prejudice will result to any person affected by reason of the delay. The question of whether there are “apparent grounds for relief” requires consideration of the merits of the claim. It is in the court’s discretion whether to grant or deny the extension: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, at paras. 17, 21.

[8] In this case, I agree with the respondent that there are no apparent grounds for relief. On applications for judicial review, this court reviews decisions of the Tribunal on a reasonableness standard: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 83. Mr. Lisikh has not provided any submissions explaining why the Tribunal’s decision is unreasonable.

[9] With respect to standing, the Tribunal reasoned, pursuant to Carasco v. University of Windsor, 2012 HRTO 195, that there is no public interest standing under the Code. Applications must be brought by an individual alleging discrimination, by an individual on behalf of another person, or by the Ontario Human Rights Commission under s. 35 of the Code where it believes it to be in the public interest to do so. Mr. Lisikh confirmed he was not bringing the application on behalf of his son and the other options did not apply to him. The Tribunal’s reasoning on this point was transparent, intelligible, and justified: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 15.

[10] Mr. Lisikh stated in his e-mail requesting reconsideration that he filed the appropriate form to represent his son in time for the reconsideration application. The Tribunal’s reconsideration decision states the Tribunal did not receive the form. Even if Mr. Lisikh attempted to file the form later, it was open to the Tribunal to deny Mr. Lisikh standing where he had expressly confirmed more than once he was not bringing the application on behalf of his son.

[11] Mr. Lisikh also has not explained on this motion why he says the Tribunal’s conclusion that the summer program constitutes a “special program” under the Code was unreasonable.

[12] Subsection 14(1) of the Code provides:

14(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

[13] The Tribunal concluded the summer program in this case fell within s. 14. It reasoned that a program that aimed to “provide equal opportunities to persons who are disadvantaged on the basis of a Code protected ground, such as colour or race or disability, can, without in any way breaching the Code, limit its services to individuals who are identified by the prohibited ground, which in this instance is their race or colour.”

[14] In his reconsideration request, Mr. Lisikh stated that s. 14 is invoked to justify exceptions for programs that are otherwise discriminatory. He stated the Tribunal’s analysis did not clearly acknowledge the discriminatory nature of the program. He also submitted the Tribunal should not have concluded without further evidence the program fell within the requirements of s. 14.

[15] The Tribunal noted there was nothing new in these submissions to justify a reconsideration. I would add that, to the extent Mr. Lisikh relies on these submissions (which were filed in his material on this motion) to say the Tribunal decisions were unreasonable, s. 14 does not state a finding of discrimination is required for it to be invoked and Mr. Lisikh has not provided any authority for this proposition. I also do not see a basis to interfere with the Tribunal’s factual findings that the summer program fell within the requirements of a s. 14 program.

[16] Mr. Lisikh submits in his notice of motion seeking an extension of time that he is self-represented with no experience in legal procedure. He states that he did not have enough time to find and solicit legal advice. He also states that the Tribunal did not assist him with how to challenge its decision.

[17] The Respondent does not claim this motion should be dismissed because of the length of or reasons for the delay. It also does not assert prejudice. The court may exercise its discretion to deny an extension of time solely because of a lack of merit: Yan v. Law Society of Ontario, 2023 ONSC 1290, at para. 8. Mr. Lisikh need not show he has a successful application on the merits, but he has not provided any basis on which this court could find the Tribunal’s decisions unreasonable. The proposed application for judicial review is devoid of merit and contains no “apparent grounds for relief.” In these circumstances, the extension is denied, and the motion is dismissed.

[18] The Respondent has not made a request for costs and none are ordered.

O’Brien J

Date: April 15, 2024