Newman v. Ontario Hockey Federation et al, 2009 HRTO 1288

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Newman

Applicant

-and-

Ontario Hockey Federation

Respondent

AND B E T W E E N:

Christopher Newman

Applicant

-and-

Ontario Hockey Association and Ontario Hockey Federation

Respondents

AND B E T W E E N:

Christopher Newman

Applicant

-and-

Sault Ste. Marie Major Hockey Association

Respondent

AND B E T W E E N:

Christopher Newman

Applicant

-and-

Soo Thunderbirds Hockey Club Inc., and Northern Ontario Hockey Association

Respondents

interim Decision

Adjudicator: Michael Gottheil

Date: August 21, 2009

Citation: 2009 HRTO 1288

Indexed as: Newman v. Ontario Hockey Federation et al

1These Applications were filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods, services and facilities. Pursuant to a Case Assessment Direction dated May 12, 2009, a joint case management teleconference hearing was held on August 11, 2009.

2All parties attended the teleconference hearing, except the applicant. There is no question the applicant had received notice of the teleconference hearing, but decided not to participate. In accordance with the Tribunal Rules, the Tribunal proceeded with the hearing in the applicant’s absence.

Background

3Each Application claims violations of the Code in three principal respects. First, the applicant, who identifies as a gay man, alleges that as a member of the public, attending minor league hockey games, he was the target of, or was required to endure, homophobic and other discriminatory slurs.

4Second, the applicant claims that the respondents failed to properly investigate and take appropriate action following complaints he made about the alleged comments.

5Third, and related to the other claims, the applicant alleges the anti-discrimination, anti-harassment and complaints policies of the respondents are inadequate.

6Each respondent filed a full Response which addresses the particular allegations in the Applications filed against them. The Responses also all raise a number of common legal defences and objections. These include:

1. the Tribunal has no jurisdiction to hear the Applications because they do not fall within one of the social areas set out in the Code
2. the applicant is not a player, coach, official, parent or member of the respondents, so the applicant cannot claim a violation of the Code by the respondents
3. the respondents do not provide a service to the applicant within the meaning of the Code
4. the Applications are without merit, are vexatious, and the Tribunal should refuse to consider the Applications.

7In addition, all respondents state that they do have comprehensive anti-discrimination and anti-harassment and complaints policies, being those adopted by Hockey Canada and/or the Ontario Hockey Association. The respondents state that they are rigorous in enforcing these policies and, notwithstanding that they owe no legal duty to the applicant, in each case did in fact respond appropriately to his complaints.

Decision

8At the teleconference hearing, the respondents requested that these Applications be deferred pending the determination of four transitional Applications filed by the applicant. Those transitional Applications are based on complaints the applicant filed with the Ontario Human Rights Commission in 2007 under the provisions of the “old Code”. Although the transitional Applications relate to different alleged incidents of discrimination, the allegations and legal claims are near identical. The respondent Ontario Hockey Federation, the governing body for minor hockey in the province, is also a respondent in two of the transitional Applications.

9The respondent Ontario Hockey Federation advised that it was in the process of filing a request in the transitional Applications seeking that they be dismissed on a number of grounds, and in particular, that the respondents do not provide a “service” to the applicant, within the meaning of the Code. The respondents concede that in some circumstances it might be appropriate to combine all eight Applications for the purpose of addressing the preliminary issues, but for a number of reasons, that would not be appropriate in this case.

10In view of the request made by the respondents, I order that these four Applications, along with all Requests for Orders During Proceeding related to these Applications, be deferred pending the determination of the preliminary issues in the transitional Applications.

Abuse of Process, Vexatious Application

11The respondents raised concerns that in view of the number of Applications filed by the applicant, that several deal with identical issues, and because of the non-participation of the applicant in the teleconference hearing, the applicant was engaging in an abuse of process and vexatious litigation. The respondents argued that their view is reinforced by the fact the applicant filed two new Applications on August 10, 2009, the day before the teleconference hearing which the applicant chose not to attend. The new Applications allege identical facts as in Applications 2008-0440-I and 2008-0840-I, but add as respondents the municipalities which own the arenas where hockey games were played, and two players who the applicant alleges made homophobic comments. The respondents allege that this litigation strategy has been ongoing for several years. They argue that as non-profit associations, with volunteer Boards, the applicant’s behaviour is extremely onerous and prejudicial.

12In view of the orders I have made above, I decline to make any finding or make any orders in respect of the claim of abuse of process, or vexatious litigation. The respondents may renew their requests at a later stage, after the preliminary issues in the transitional Applications have been determined.

13The Tribunal notes that it has not yet sent Notice of the two new Applications to the named respondents. The Tribunal has sent the applicant a Notice of Intent to Dismiss for lack of jurisdiction in those two Applications, pursuant to Rule 13, in respect of the two players named as respondents. It is not apparent how minor league hockey players provide a service to the applicant within the meaning of the Code.