[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Yan v. Mohawk College, 2024 ONSC 3242

DIVISIONAL COURT FILE NO.: 076/21

DATE: 20240612

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NATHALIE XIAN YI YAN, Applicant

AND:

MOHAWK COLLEGE, Respondent

BEFORE: Lococo, Matheson and Myers JJ.

COUNSEL: Self-represented Applicant

Elisha C. Jamieson-Davies and Justin Choy, for Mohawk College

Brian Blumenthal, for the Human Rights Tribunal of Ontario

HEARD: June 10, 2024, in Toronto

ENDORSEMENT

[1] The applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (HRTO) dated March 6, 2020 and the related reconsideration decision dated January 4, 2021 (the Decisions).

[2] The applicant applied to the HRTO alleging discrimination by the respondent College in the provision of goods, services and facilities under the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) based on race, ancestry, place of origin and creed, as well as association with a person identified by a listed ground.

[3] The applicant was a student in the respondent’s paralegal program. The applicant’s complaint related to her participation in an Administrative Law course, in which there was a group assignment. In her complaint to the HRTO, the applicant recounted events regarding her request to be assigned to a different group because the group she had been assigned to was looking at the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (CTCMPAO). The applicant had a history with the CTCMPAO and thought the topic would be a conflict of interest for her.

[4] The applicant made a number of requests about moving to different groups. Although the applicant’s instructor did not agree with all the requests, she did take the applicant out of the original group and permitted the applicant to do the assignment alone. In her HRTO complaint, the applicant said that she appreciated and accepted that outcome and was academically capable of doing the assignment alone.

[5] The applicant complained to the HRTO about how the presentations were organized. She noted that on the list for the presentations the groups were listed by group number but her name was shown. Further, the applicant asked to present last, which was not permitted. The applicant also made assertions about the content of the student presentation regarding the CTCMPAO, about a student “celebration” in the hallway outside the classroom, about other student conduct, and about later social media posts.

[6] The HRTO gave notice of its intent to dismiss the application because the narrative did not identify any specific acts of discrimination within the meaning of the Code that were allegedly committed by the respondent College. The application therefore appeared to be outside the HRTO’s jurisdiction. The applicant was given the right to make submissions in response to the notice and did so.

[7] After considering the Applicant’s submissions, the HRTO dismissed the application. The Adjudicator found that it was not at all clear why the applicant perceived that the instructor’s alleged actions were unfair or that they were in any way connected to any of the Code grounds that she relied on to allege discrimination.

[8] The applicant sought a reconsideration. The applicant relied on the HRTO rule that permits a reconsideration where that there are new facts or evidence submitted on the request for reconsideration that could potentially be determinative of the case and that could not have been submitted earlier.

[9] The Adjudicator was not persuaded that the above grounds for reconsideration were met. The Adjudicator found that the events described by the applicant were not new – they were all known to her when she provided her submissions in response to the notice of intent to dismiss. Further, they did not link the treatment that the applicant complained of to any of the prohibited grounds of discrimination that she relied on in support of her application to the HRTO.

[10] The request for reconsideration was therefore denied. The applicant sought judicial review.

[11] As a preliminary matter, the respondent asks that this application for judicial review be dismissed for delay because the applicant took a very long time to perfect her application. The applicant has provided an explanation for the delay. Without approving of the length of the delay, this application will not be dismissed based on this preliminary objection.

[12] There is also a preliminary objection to paras. 8-12 of the applicant’s affidavit filed in support of her application for judicial review. That evidence recounts regulatory proceedings against the applicant at the CTCMPAO in 2016. The affidavit indicates that those regulatory proceedings related to patient care, which is not the subject of the HRTO complaint. The affidavit also identifies a CTCMPAO investigator who the applicant says she saw on campus on the day of the above group presentations for her course in 2018. The applicant submits, based on this evidence, that she did not know why he was there.

[13] This evidence is supplemental to the record and does not fall within the categories of additional 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. However, even if we were to admit all of that evidence, it would not change the outcome of this application.

[14] The application for judicial review raises these issues:

(i) whether either of the Decisions is unreasonable;

(ii) whether the Adjudicator was biased; and,

(iii) if either of the above is shown, what is the appropriate remedy.

[15] As set out below, it is not necessary to address the third issue.

[16] With respect to the first issue, as set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 99, the reviewing court asks “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”. In applying the reasonableness standard, the court takes into account the expertise of the tribunal: Ontario (Minister of Health and Long-Term Care) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561,at para. 82.

[17] With respect to the reconsideration decision, this Court has also stressed that discretionary findings with respect to the HTRO adjudicating requests for reconsideration in applications under the Code “are areas of expertise unique to the Tribunal. …A high degree of deference should be accorded to such decisions”: Mohmand v. Ontario (Human Rights Tribunal), 2021 ONSC 528 (Div. Ct.), at para. 19.

[18] The applicant bears the burden of showing that the Decisions are unreasonable: Vavilov, at para. 100.

[19] In the materials that the applicant submitted to the HRTO, the main focus of the complaint was on the conduct of students, especially her former group’s presentation about the CTCMPAO. The applicant submitted that the student presentation and the student activity outside the classroom and on social media rose to the point of being an attack on her. In her factum on this application for judicial review, the applicant now makes allegations, unsupported by the record, that the course instructor participated in, arranged and organized, what the applicant describes as the attack on her. There are also allegations against other people and about events that do not relate to the respondent College. These new allegations do not provide a foundation to challenge the Decisions.

[20] The applicant further submits that the Decisions are unreasonable because they did not sufficiently analyze the impact of the actions complained of on her and her family. This submission overlooks the basis for the Decisions, specifically the lack of foundation for the alleged discrimination. There must first be alleged discrimination under the Code.

[21] The applicant also raised issues about the regulatory proceedings at the CTCMPAO, which are not the proper subject matter for this application for judicial review.

[22] We have considered all the applicant’s grounds. We conclude that the Decisions are reasonable. The Decisions show the Adjudicator’s analysis of the initial complaint and the request for reconsideration, the application of the Tribunal’s rules, and the justification for both Decisions.

[23] The applicant also challenges the reconsideration decision because the same Adjudicator decided the reconsideration decision and the underlying decision. This is an allegation of bias, which must be considered in its specific context and in view of the well-established presumption of impartiality. The adverse finding in the first decision does not give rise to a reasonable apprehension of bias that would preclude the Adjudicator addressing the reconsideration.

[24] This application is therefore dismissed. There shall be no order as to costs.

Lococo J.

Matheson J.

Myers J.

Date: June 12, 2024