HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Joseph Modi Complainant
-and-
Paradise Fine Foods Ltd. Sayed Ben Aycha, Muhamd Omarbach Respondents
INTERIM DECISION
Adjudicator: David Mullan
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Sharon Ffolkes-Abrahams, ) Counsel and Richard Miller, ) Student-at-Law
Joseph Modi, Complainant ) On his own behalf
Paradise Fine Foods Ltd, Corporate Respondent ) Muhamd Omarbach, Personal Respondent ) Louis Mostyn, Counsel and Sayed Ben Aycha, Personal Respondent ) Matthew Mostyn, Student-at- ) Law
INTRODUCTION
1In the course of his opening statement, Louis Mostyn, counsel for the respondents indicated that he would almost certainly be making a motion at the conclusion of the Commission’s case that I should dismiss the complaint because the evidence tendered had not made out a prima facie case. At that time, he sought a reassurance that he could make such a motion without prejudice to his right to call evidence should I dismiss that motion. I provided that reassurance.
2Counsel for the respondents was true to his word. At the conclusion of the Commission’s case, he did move for dismissal of the complaint. The principal basis for that submission was that, even were I to believe all of the testimony for the complainant, it would not permit the conclusion that the respondents had denied the complainant “equal treatment with respect to services…because of…place of origin…ethnic origin [or] creed” as proscribed by section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.18 (Code). As characterized by Mr. Mostyn, the evidence revealed a single incident divorced from the context of the providing of a service; the matters complained of were in essence a political, cultural, and religious debate that got out of hand. In short, he submitted that there was no nexus between the relevant events and the provision of a service.
3Sharon Ffolkes-Abrahams for the Commission opposed the motion. She also contended that, in making the motion, Mr. Mostyn was, as a matter of law, electing not to call any evidence should the motion fail. In opposing the motion on its merits, she argued that, as a matter of law, a single incident or event was sufficient to trigger section 1’s protection of the right to be afforded equal treatment with respect to services, that a denial of equality with respect to services could take place even though a specific transaction had not yet been initiated, and that there was, in terms of the appropriate test, at least some evidence to support a finding that the whole course of events took place within a service context and amounted to a denial of a service.
SUMMARY OF CONCLUSIONS
4I ruled initially that, as a matter of discretion, I was prepared to allow Mr. Mostyn to proceed with his motion without prejudice to his ability to call evidence were the motion to fail. At the conclusion of submissions, I dismissed the motion holding that the testimony for the Commission in support of the complaint, if believed, did make out a prima facie case of violation of section 1 of the Code.
ANALYSIS
ELECTION
5In civil proceedings, the price tag for making a motion for a non-suit at the conclusion of a plaintiff’s case is often a foregoing of the right to call evidence should the motion fail. Apparently, there is no consensus in human rights jurisprudence as to whether that rule applies to human rights proceedings. Certainly, the rule has been applied but generally on a discretionary, not a mandatory basis, with adjudicators in this jurisdiction frequently taking the position that it all depends on the particular circumstances. (For an account of the human rights case law,