CITATION: Al-Hayali v. National Dental Examining Board of Canada, 2024 ONSC 6995
DIVISIONAL COURT FILE NO.: 273/24
DATE: 20241216
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Waleed Al-Hayali, Applicant
AND:
National Dental Examining Board of Canada, Respondent
AND:
Human Rights Tribunal of Ontario, Respondent
BEFORE: Backhouse, Matheson and O’Brien JJ.
COUNSEL: Marshall Reinhart, for the Applicant
Julia Dales and Marie Dagenais for the Respondent, National Dental Examining Board of Canada
Maija-Lisa Robinson, for the Respondent, Human Rights Tribunal of Ontario
HEARD at Toronto: December 12, 2024
ENDORSEMENT
Backhouse J.
Overview
[1] The Applicant seeks judicial review of an April 4, 2023 Preliminary Decision and an April 12, 2023 Reconsideration Decision of the Human Rights Tribunal of Ontario ("HRTO").
[2] The Preliminary Decision confirmed by the Reconsideration Decision dismissed the Applicant's discrimination claim against the National Dental Examining Board of Canada ("NDEB") for filing his application outside the HRTO's one-year limitation period without a good faith explanation for the delay as required by Section 34 of the Human Rights Code, RSO, 1990, c.H.19 ("OHRC").
[3] Section 34 provides:
Application by person
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
Late applications
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
Background
[4] The Applicant is a foreign-trained dentist who sought accreditation to practice in Canada.
[5] Foreign applicants must pass three NDEB Certification Exams to qualify for accreditation: the Assessment of Fundamental Knowledge ("AFK"), the Assessment of Clinical Judgment ("ACJ"), and the Assessment of Clinical Skills ("ACS").
[6] The Applicant passed the AFK but failed the ACJ on three separate attempts in December 2016, June 2017, and December 2017. He received the result for his third failed attempt of the ACJ on January 31, 2018. He then requested and later received a manual re-score of his test on March 6, 2018, which confirmed his failed result.
[7] On February 5, 2018, the NDEB wrote to the Applicant informing him that, having failed the ACJ three times, he was no longer eligible for the equivalency process.
[8] The Applicant contacted the HRTO to inquire about making a complaint against the NDEB and was advised to submit his complaint to the Canadian Human Rights Commission ("CHRC"). He filed his application with the CHRC in April, 2018. They advised him on January 4, 2019 to submit his application to the HRTO, which he did on January 9, 2019.
[9] The HRTO found in the Preliminary Decision that the CHRC made the Applicant aware of his error in April 2018 and the Applicant did not explain the delay before he filed his out of time application with the HRTO on January 9, 2019. Finding that this was an eight month delay, the HRTO found that the Applicant did not recite any facts that could constitute a "good faith" explanation for the delay and therefore did not meet the test for an extension of time under s. 34(2).
[10] It is clear and not disputed in this court that in the Preliminary Decision, the HRTO misconstrued the date the Applicant was advised by the CHRC that his application was filed in the wrong place. The information before the HRTO was set out in the Applicant’s application to the HRTO where he stated that after filing his application with the CHRC in 2018 as the HRTO had advised him to do, the CHRC replied to him on 4/1/19 to submit the application to the HRTO. This was transposed in the Preliminary Decision as April 1, 2018 rather than the correct date of January 4, 2019. He filed his application with the HRTO on January 9, 2019, five days after learning it was filed in the wrong place, and not eight months after, as the HRTO found.
[11] The Applicant made two separate claims of discrimination in his application:
(1) As noted in paragraph 5 of the Preliminary Decision, the Applicant alleges that the NDEB's prohibition against electronic aids with respect to exams is discriminatory for those with visual disabilities and older applicants such as himself.
(2) As noted in paragraph 6 of the Preliminary Decision, the Applicant alleges that the exam scoring procedures of the NDEB are discriminatory based on the 2017 Assessment of Clinical Judgement (the "ACJ") technical report due to the Applicant's age and vision limitations.
The Preliminary Decision does not go on to recognize that the Applicant's application stated that the ACJ technical report was not approved until May 2018 and was "cleared" July 2018.
HRTO Decision
[12] The HRTO ordered that a combined summary and preliminary hearing take place to determine (a) whether the application should be dismissed because there is no reasonable prospect of success; and (b) whether to dismiss all or part of the application because of delay. The hearing was originally scheduled for March 31, 2020, but later rescheduled to August 2, 2022. The HRTO addressed the matter under (b) – delay.
[13] The HRTO considered s. 34 of the OHRC, finding that the application fell outside the one-year limitation period of all relevant "trigger" dates. As found by the HRTO, the application, having only been filed with the HRTO on January 9, 2019, was:
• more than two years after the first ACJ attempt in December 2016;
• more than 18 months after the second ACJ attempt in June 2017; and
• more than one year after the third ACJ attempt in December 2017.
[14] The HRTO held that the limitation period for the third ACJ attempt began on December 1, 2017, when the Applicant wrote the test, and not the date on which he received his result (January 31, 2018), or the date on which he received his manual re-score (February/March 2018). The HRTO relied on Konesaanathan v. College of Physicians and Surgeons of Ontario, 2017 HRTO 973, para. 46, as authority for this. Konesaanathan held that pursuing an internal appeal or reconsideration of a decision does not extend the time limit under s. 34(1) of the OHRC.
[15] Because the HRTO found that the application fell outside the one-year period, the HRTO then considered whether the delay was incurred in good faith pursuant to s. 34(2) such that it should proceed anyway. It reiterated the Applicant's submissions, namely that he was delayed because of his initial attempt to file with the CHRC rather than the HRTO. The HRTO found that the Applicant did not cite any facts or evidence constituting a "good faith" explanation for non-compliance with the one-year limitation period.
[16] Based on these findings, the HRTO dismissed the application on the basis that it was untimely and therefore outside its jurisdiction. It did not consider the merits of the discrimination claim.
[17] The Applicant requested reconsideration shortly thereafter.
Reconsideration Decision
[18] Rule 26.5 of the HRTO's Rules of Procedure enumerates four grounds on which a Request for Reconsideration will be granted. For the purpose of the Applicant's request, the only relevant grounds were (a) new facts or evidence that could potentially be determinative of the case and that could not reasonably be obtained earlier; and (d) other factors that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
[19] In his submissions, the Applicant raised new facts pursuant to ground (a) but conceded that they would not change the overall outcome of the impugned decision. The Tribunal also determined that there was no explanation as to why they were not obtained earlier. With respect to ground (d), the HRTO found that the Applicant made only vague reference to "the sense and spirit of justice" but did not cite any factor outweighing the finality of the decision below.
[20] The Request for Reconsideration was dismissed on this basis.
[21] The application for judicial review alleges that the HRTO's findings with respect to the limitation date were unreasonable and that the hearing was not procedurally fair.
[22] The Applicant argues that a Case Management Direction dated February 24, 2020 confirmed that an interpreter requested by the Applicant would be provided for the hearing originally scheduled for March 31, 2020. When the hearing was rescheduled to August 2, 2022, he did not make a renewed request nor did he raise this as an issue during the actual hearing. The Applicant did not raise the issue of the lack of an interpreter in his request for review submissions.
[23] At the hearing of the judicial review application, the Applicant was represented by counsel. He confined his submissions to the unreasonability of the findings with respect to the limitation date and made no submissions with respect to the issue of an interpreter. Accordingly, these reasons do not address that issue. The issue to be determined on this judicial review application is whether the Tribunal's Preliminary Decision dismissing the application for delay and the Reconsideration Decision dismissing the request to reconsider were reasonable.
Issue 1-Did the HRTO unreasonably dismiss the Applicant's claim for delay?
Two Separate Claims of Discrimination Starting from Different Dates
[24] We agree with the submission made on behalf of the Applicant that the HRTO mistakenly treated the limitation period with respect to the two claims of discrimination as starting from the same date. The second claim of discrimination challenged the exam scoring procedures. The Preliminary Decision does not address why the commencement of the limitation period for the second claim would not start to run from the date the ACJ technical report came into effect which, according to the Applicant's application to the HRTO, was either May or July, 2018. Accordingly, it was unreasonable to find that the second claim was statute barred when the application was filed with the HRTO on January 9, 2019.
Decision Unreasonable because HRTO mistakenly relied on eight month delay in finding no good faith
[25] The NDEB submits that the exact time at which the Applicant learned of his error of filing in the wrong forum (whether April 2018 or January 2019) is irrelevant. It submits that filing claims in the wrong forum regardless of one's lack of knowledge or when they first discovered the error does not amount to a good faith explanation for delay.
[26] The problem with this argument is that the HRTO’s error in finding an eight-month delay was a material consideration for the HRTO in deciding that there was no good faith reason the delay was incurred. It found that the Applicant provided no satisfactory explanation for the eight-month delay (which was actually a five-day delay) between learning of his improper application to the CHRC and filing with the HRTO. This error grounded the HRTO's conclusion that the one-year period could not be waived under s. 34(2). The HRTO did not find that filing a claim in the wrong forum was dispositive of a no good faith finding.
[27] In this case, the Applicant consulted the correct body, the HRTO, as to where to bring his application and was told the CHRC. As soon as he was advised by the CHRC that he was in the wrong place, he again consulted the HRTO and filed in the HRTO five days later. Counsel for the HRTO confirmed that she was not aware of any caselaw where such a constellation of facts had been found not to constitute a good faith reason that delay was incurred.
[28] The Preliminary Decision was unreasonable for finding, on a mistaken fact, that the delay was not incurred in good faith.
Proper Interpretation of "incident to which the application relates" in s. 34(1) of OHRC
[29] To establish discrimination under the OHRC, a claimant must show that they have a characteristic protected from discrimination and they have experienced an adverse impact within the protected area. The adverse impact with respect to the first claim would appear to be the failed result on the examination as a result allegedly of not having electronic aids. The Decisions do not consider whether the limitation period should commence upon the adverse impact becoming known. Had the date the Applicant was advised that he did not pass the examination been chosen as "the incident to which the application relates", the first claim in the application would have come within the one year limitation period.
[30] At paragraph 13 of its Preliminary Decision, the HRTO held:
The Tribunal has stated that pursing an internal appeal or reconsideration of a decision does not extend the time limit under s.34(1) of the Code. …Therefore, the applicant cannot assert that the time should not begin to run until they received notice of their results on January 31, 2018 or from when they received notification of the Manual Rescore Results in February 2018. Restating or confirming a previous decision is not a separate incident of discrimination for which one could extend the limitation period…
[31] The above reasons appear to wrongly conflate the receipt of the examination results with the receipt of an internal appeal or reconsideration decision.
[32] At the hearing in this Court, the Panel raised with counsel whether "incident" in s. 34(1) of the OHRC could be said to be complete before the Applicant had been advised of the adverse impact of the alleged discrimination (here, the Applicant being advised of the failing grade on January 31, 2018). Counsel for the HRTO was not aware of any caselaw which dealt with adverse impact in this context. She did agree that to compare the receipt of exam results to pursuing an internal appeal or a reconsideration as a basis for not extending the limitation period was not an apt analogy.
[33] It is not necessary to our decision to determine this issue and we raise it as a matter which the HRTO may wish to consider when this matter is returned before it.
Conclusion
[34] As a result of the two errors set out above, the application for judicial review is allowed and the matter is remitted to the HRTO for the application to be addressed in accordance with these reasons for decision.
Costs
[35] In accordance with the parties' agreement, costs are awarded to the Applicant in the all inclusive amount of $5,822.
Backhouse J.
I agree _______________________________
Matheson J.
I agree _______________________________
O’Brien J.
Date: December 16, 2024