HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Suzanne Sauve
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Training, Colleges and Universities, Gayle Jones-Smith, Carol Leeming and Kim Dunn
Respondents
DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Sauve v. Ontario (Training, Colleges and Universities)
AppearanceS BY
Suzanne Sauve, Applicant ) On her own behalf
Her Majesty the Queen in Right of Ontario ) as represented by the Minister of Training, ) Melanie Herbin, Counsel Colleges and Universities and Gayle Jones-Smith, ) Respondents )
)
Carol Leeming, Respondent ) On her own behalf
Kim Dunn, Respondent ) On her own behalf
Introduction
1This is an Application filed under Section 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”) alleging discrimination in goods, services and contract on the basis of creed. The Case Resolution Conference (“CRC”) was initially scheduled for March 2 and 3, 2009. On those dates, I heard submissions with respect to a preliminary issue as to whether the applicant’s belief in and use of tarot cards constituted a creed under the Code. In my Interim Decision, 2009 HRTO 296, I found that the preliminary issue was premature and that the Tribunal required the full facts of the case before making any determination. As a result, the CRC was continued on July 14, 2009.
2At the CRC, the organizational respondent, the Ministry of Training Colleges and Universities (“MTCU”), and personal respondent, Ms. Gayle Jones-Smith, were represented by counsel. The personal respondents, Ms. Carol Leeming and Ms. Kim Dunn, were not represented, and while relying on the submissions of MTCU, provided their own evidence, conducted their own cross-examinations and made additional submissions. The applicant represented herself and was assisted by her husband, who also testified.
3During the hearing, the applicant advised that she was not alleging that the respondent, Ms. Leeming, had discriminated against her.
Background
4In 2007, the applicant had applied for business and financial support for a start-up business under the Self Employment Benefits Program (“SEB”) administered by MTCU. The individual respondents were involved in the decision-making process that resulted in the denial of the applicant’s SEB application.
5At the core of her allegations is the applicant’s belief that her SEB application was denied because her proposed business involved reading tarot cards. It is the applicant’s position that the reading of tarot cards is part of her creed and, if her application was denied because of tarot card reading, she has been discriminated against based on creed. The applicant self identifies as a Minister of the Metaphysical Church, and as a member of Canada’s First Nations. As is set out in more detail in my Interim Decision, her practice of tarot, she submits, is an integral part of her creed as a believer in Metaphysics.
6The respondents submit that the decision to deny the applicant admission to the program was not based on any prohibited grounds under the Code but instead was based on the fact that the applicant was ineligible for participation in the program because she had already run a similar business through a SEB program in British Columbia, as well as a counselling business in Ontario prior to applying for the program.
SEB Program
7The SEB Program is one of several programs that comprise the Canadian Employment Insurance system (“EI”). When an individual makes an application for EI, he or she meets with an Employment Counsellor, who first determines whether the applicant is eligible for EI. Once eligibility for EI is confirmed, the Employment Counsellor makes an assessment as to which program within the EI system would be most appropriate for the client. The available programs include income replacement while searching for another job, retraining programs and the SEB program.
8The SEB program is designed to provide 50 weeks of business training and support along with a 50-week income subsidy of $423 per week for those candidates judged able to become self-employed running a viable business. The SEB system is administered and funded by multiple levels of government. While the Federal Government played no part in this case, if the business had been approved by MTCU, start-up capital would have been provided by the federal government, while program administration is overseen by the provincial government (and in the case of Ontario, through the respondent MTCU). The workshops and frontline contact are delivered through the local government, in this case Huron County, while the business support is provided by independent business advisors retained by the program. The role of the business advisor is to make an initial viability assessment of the proposed business and, if approved, provide on-going consulting support to the SEB participants to assist the business to become self-sustaining within the 50 weeks of the program.
9The MTCU’s SEB Benefits Guidelines, which formed part of the MTCU’s submissions, describe the objective of the SEB Program as “providing financial assistance to eligible participants to help them start their own businesses.” The Guidelines describe an eligible business activity as one that is:
Full-time, which means that the eligible participant must devote at least 35 hours per week to implementing the business;
A new business;
An existing business in which the eligible participant had no prior ownership;
The business must be suitable for public funding (e.g. must not exploit sex, religion, or politics);
The business may be home-based;
Conversion of a hobby to a business is acceptable.
10Once an applicant and her employment consultant determine that the SEB Program is suitable, the applicant must attend a multi-day workshop which explains the program and provides printed material on a number of subjects including the decision-making process. The applicant attended the workshop in 2005 and again in August of 2007. Part of the workshop was led by Ms. Leeming. After attending the workshop, an applicant must submit a ‘business concept’ to the program, in this case, to Ms. Leeming. It was Ms. Leeming’s evidence that in Huron County, 84% of applications to the SEB Program are accepted, 11% rejected, and the balance are withdrawn.
11In this case, the respondent Ms. Jones-Smith is employed by the MTCU as an Employment and Training Consultant, and oversees the SEB Program in Huron County for the MTCU. It is she who makes the final determination of the eligibility of an applicant on behalf of MTCU. The respondent Ms. Leeming is an employee of Huron County and is the SEB coordinator (amongst other duties). Ms. Dunn is an independent business consultant, who was retained by the SEB program and assigned to the applicant to review and assess her business proposal.
Evidence
12As is often the case, I find that a chronology of the events is helpful in determining what information was available when relevant decisions were made. The parties agree on most of the following chronology, and it is drawn from the evidence as heard by me and constitutes the facts as found by me.
13In 2001, the applicant applied for and was accepted into the SEB program in British Columbia. That business was described by the applicant as a retail storefront which sold New Age materials, including crystals; later, the applicant added tarot card reading to this first business.
14In 2005, the applicant attended the SEB workshop in Huron County and between 2005 and her re-attendance at the workshop in 2007, she conducted research, including market research, for the proposed business that is the subject matter of this Application.
15The applicant’s evidence was that she telephoned the Huron County Business Centre on October 19, 2007 to make an appointment to deliver her ‘business concept’ and supporting documents. The appointment was made for Monday, October 22, 2007.
16The business concept is intended as the outline of the business plan for the proposed business. It is fair to say that with two years of development, the applicant’s concept documents were more extensive than usual, with a significant volume of appendices.
17The applicant testified that she went to the Huron Business Centre on October 22, but Ms. Leeming was not there. While it is unclear from the evidence whether the applicant left the material at the Business Centre on October 22, or returned to deliver it on another day, the evidence is clear that it was delivered some time before October 26, 2007, as on that date Ms. Leeming advised the applicant that the business concept had been sent to the business advisor, Ms. Dunn.
18Ms. Leeming testified that when she receives a business concept from an SEB applicant, it is her practice to have her staff make two copies of the document; one copy is sent to the assigned business advisor to begin the business viability assessment; while the second copy is sent to Ms. Jones-Smith for the Ministry to determine whether the concept qualifies for the program. Ms. Leeming does not retain a copy. The evidence suggests that in this case, while Ms. Dunn, the business advisor, did receive the complete package filed by the applicant, Ms. Jones-Smith may not have received all of the appendices and supporting material. The evidence is that, contained in Ms. Jones-Smith’s package was a resumé of the applicant prepared in 2005 and not the one she prepared in 2007. The 2005 resumé indicated that in 2003 the applicant had run a “successful home based counselling business”. The 2007 resumé makes no mention of the 2003 business. The applicant admitted she prepared the 2005 resumé but testified she did so for another purpose, and that it was her intention that her application be based on her 2007 resumé (that did not mention the 2003 business). In fact, the applicant testified that the statement in her 2005 resumé (that she had previously run a successful home-based counselling business) was untrue. The only resume in Ms. Jones-Smith’s possession at the time she was determining the applicant’s eligibility for the SEB Program was the 2005 version.
19Nevertheless, Ms. Jones-Smith testified that between October 26 and November 2, 2007, she reviewed the materials provided to her. Based on the material before her, Ms. Jones-Smith had concerns with respect to the applicant’s eligibility for the SEB program because the business described in the business concept appeared similar to the businesses previously run in both Ontario and British Columbia. In order to make a final determination on the applicant’s eligibility, Ms. Jones-Smith asked Ms. Leeming to get further details about the earlier businesses.
20The applicant’s evidence is that she received a telephone call from Ms. Dunn (the assigned business advisor) on November 1, 2007 to set up an appointment with the applicant to review the business concept. The appointment was made for November 3, 2007 at the applicant’s house. The applicant takes issue with the appropriateness of Ms. Dunn suggesting the meeting be at the applicant’s home; however, in the circumstances I see nothing wrong with this practice as neither Ms. Dunn, as a self -employed independent contractor nor the applicant had an alternate place of business at the time.
21On November 2, 2007, Ms. Jones-Smith contacted Ms. Leeming to advise that clarification was needed with respect to the eligibility of the proposed business. As set out in Exhibit 18, Ms. Leeming’s response to Ms. Jones-Smith’s enquiry was to email Ms. Dunn and ask her to investigate. Ms. Leeming’s email of November 2, 2007 to Ms. Dunn states:
It appears from the SEB application and corresponding information that this client has previously owned and operated a business in counselling and self-empowerment classes. Can the client provide more information? We cannot approve the business that has previously been operated by the client.
22Ms. Dunn, the applicant and her husband met at the applicant’s house on November 3, 2007. It is this meeting, and in particular what Ms. Dunn is alleged to have said, that forms the basis for this application to the Tribunal. The following are my findings of fact as to what occurred at that meeting, based on the testimony of Ms. Dunn, the applicant and her husband, as well as contemporaneous documents created by each.
23First, as both Ms. Dunn and the applicant testified, the applicant believed that at the time of the meeting she had already been approved for the program by Ms. Leeming. I find that the applicant did erroneously believe that she had somehow received some level of approval from Ms. Leeming. The applicant testified that at this meeting Ms. Dunn indicated that is was she who gave approval. Again I find that while the applicant believes that this is what Ms. Dunn said, in fact what Ms. Dunn attempted to communicate was that the SEB application would not be approved if she was unable to conclude that the business was potentially viable. Ms. Dunn’s attempt to explain these things may have established an adversarial undercurrent in the meeting, which influenced the applicant’s perception of the rest of the meeting with Ms. Dunn.
24The parties both agree that as part of the meeting Ms. Dunn reviewed the applicant’s cash flow projections and had criticisms of them and concluded that if properly calculated the business was a losing proposition. I can appreciate that the applicant who had developed and researched this business concept for two years was, like many entrepreneurs, convinced of the potential for her business and was not prepared for the criticism that Ms. Dunn believed was appropriate (in light of Ms. Dunn’s mandate to ensure that the business was viable.) This again would increase the adversarial nature of the relationship between the applicant and Ms. Dunn, and the applicant would have naturally attempted to defend her conclusions.
25Both the applicant and Ms. Dunn concur that during the meeting Ms. Dunn asked the applicant about her previous businesses. It is clear from the evidence that the applicant’s response dealt only with the business in B.C. in 2001 and not the 2003 business disclosed on the 2005 resumé.
26In response to Ms. Dunn’s enquiries about the previous businesses, I find that the applicant advised Ms. Dunn that the 2001 business and the proposed business were different because the 2001 business was 95% retail (with 5% being tarot readings), while the proposed business would be service-oriented with only a small retail element tied to the counselling. This information was forwarded by Ms. Dunn to Ms. Leeming by email on November 4, 2007, and in turn by Ms. Leeming to Ms. Jones-Smith on November 5, 2007. On cross-examination the applicant admitted that the emails in question accurately reflect what she had told Ms. Dunn about the differences between the 2001 and the proposed business.
27The applicant alleges that during her meeting with Ms. Dunn on November 3, 2007, Ms. Dunn insisted on the removal of the tarot readings from the business concept. The applicant alleges that Ms. Dunn said that if the applicant removed the tarot reading from the concept, Ms. Dunn would approve the business concept. Ms. Dunn’s email of November 4, 2007 confirms that there was discussion about the removal of tarot reading from the business concept:
Although [the applicant] has planned on doing some tarot readings as well she is willing to leave this part out of her plan if this makes a difference (…)
28The email continues, in part, to read:
Should we decide to give this a chance, [the applicant] is aware that I would be placing a number of conditions that would require more research on her part. [The applicant] has some good ideas about “indirect target markets” for client referrals and bookstores to approach. She has made assumptions in her numbers without actually looking into the viability of some of these assumptions. Her numbers rely heavily on workshops and classes that run on a constant basis. She has assumed a perfect turnout success rate which I don’t believe is sustainable (…)
(…)
I don’t know if there’s any way we can access the BC SEB records to know for sure what nature of business she had, but Suzanne and her husband seemed sincere, both on the same page when asked about it with no prior warning.
Let me know if you want me to continue or whether you feel having the other business in BC through SEB disqualifies [the applicant].
29From the time of the meeting and Ms. Dunn’s suggestion that tarot readings might be removed from the business concept, the applicant was convinced that Ms. Dunn was prejudiced against her and tarot. The applicant also alleges that Ms. Dunn asked the applicant during the November 3 meeting what the applicant’s religious affiliation was and whether the applicant was Native. From that time on, the applicant was convinced that Ms. Dunn on behalf of MTCU had acted inappropriately. In fact, prior to any decision or further communication from the program, the applicant contacted Ms. Pauline McFadden, the applicant’s employment advisor, to complain about Ms. Dunn. The applicant testified that when Ms. Leeming called her on November 6, 2007, the applicant advised her that she had been treated poorly by Ms. Dunn and asked that another business consultant be assigned.
30During the conversation of November 6, 2007, Ms. Leeming asked the applicant for further details of the applicant’s employment history since 2001. In response to Ms. Leeming's request, the applicant prepared a letter dated November 7, 2007. In this letter the applicant mentions the 2001 business but not the 2003 business. Ms. Leeming further testified that, while in appropriate cases business advisors are reassigned, this was not done in this case because there was an outstanding issue as to whether the applicant qualified for SEB; as a result, nothing further would be done until MTCU made its determination on eligibility.
31On November 22, 2007, Ms. Jones-Smith issued the MTCU’s decision letter to the applicant denying the applicant’s entry into the SEB Program (Exhibit 10). The denial letter reads in part:
Based on information submitted with the application, this office, in consultation with the regional SEB consultant, has determined that it cannot approve your request for funding. The reasons are as follows:
You previously received support for Self Employment Benefits for a business that included some of the activities included in the new submission, namely retail sales. While this does not exclude you from reapplying for SEB it does raise the question regarding the need for business support.
You have also had another business registered in Ontario that included “counseling and self-empowerment classes” which are activities also included in your business submission….
Findings of Fact
32First, I wish to make it clear that I believe the applicant genuinely thinks she was discriminated against and that this is not a frivolous application. Second, I find that Ms. Dunn did suggest the removal of tarot from the business concept. Third, it is likely that there was a brief discussion about religion during the November 3, 2007 meeting as Ms. Dunn, by her own admission, attempted to assist the applicant in getting a vehicle for the business through a program run by Ms. Dunn’s husband at the Dunns’ church. I further appreciate from the applicant’s perspective that, in light of the eventual decision to deny her benefits, she believes the reason for her denial was because of her creed.
33However, perception is not always reality. I find based on the testimony of the witnesses and Ms. Dunn’s email of November 4, 2007 that she was at all times attempting to help the applicant qualify for the SEB benefits. At the time of their meeting, Ms. Dunn knew that there was a possibility, even a strong possibility, that the applicant would be denied the SEB benefits if the 2001 business and the proposed business were similar; and that by the applicant’s own admission at the November 3 meeting, tarot card reading was an element of both businesses.
34Ms. Dunn appears to have been unaware of the reported 2003 business that Ms. Jones-Smith was concerned about. Ms. Jones-Smith made two attempts to determine whether the previous businesses were sufficiently different to qualify the proposed business for SEB. She made the initial inquiry of Ms. Leeming, which resulted in Ms. Dunn’s questions; and she made a second request, which resulted in Ms. Leeming’s request of November 6 and the answer by the applicant in the letter of November 7, 2007. Perhaps Ms. Jones-Smith could have been more direct in asking about the discrepancy between the 2005 resumé which listed the successful 2003 counselling business and the applicant’s responses that did not mention it. However, Ms. Jones-Smith cannot be criticised for relying on an inaccurate resumé provided by the applicant.
35With respect to the applicant’s claim that the 2001 business and the proposed business were not the same, the financial statements provided by the applicant tell a different story in that a significant portion of the projected revenue was to be generated from retail sales of products used to support the counselling and self empowerment. I accept the applicant’s position that 95% of her effort would be focused on the service and counselling part of her business; however, the projected revenue relies heavily upon the retail aspect of her business. The applicant says that the retail is ancillary and should not be considered. Nevertheless, I find that the respondents acted reasonably in concluding that the businesses were similar. Even if the respondents were incorrect in concluding the businesses were sufficiently similar so as to be ineligible, this mistake does not constitute a violation of the Code.
Decision
36I find that the decision to deny the applicant the SEB benefits was a decision made solely by Ms. Jones-Smith on behalf of MTCU and that the denial of the benefits under the SEB Program was not made because of a disapproval of or discrimination against tarot card reading. The decision was made based on the terms and conditions of the program; namely, that an applicant cannot receive benefits for a business similar to one she had already operated. Whether the 2003 business existed is irrelevant, as the information provided to the MTCU by the applicant asserted it did and the MTCU cannot be faulted for basing its decision, at least in part, on the applicant’s representation. Further, I do not believe that the brief discussion of religion with Ms. Dunn was a breach of the Code or was in any way a factor in the decision.
37Much was made about who made the final decision about eligibility. While the final decision was MTCU’s, in the course of a normal application the business advisor would have to sign off on the potential viability of the business, which in turn would have to be endorsed by the County. In this case, no determination was ever made about the business viability and I find that Ms. Dunn did not make the determination with respect to the applicant’s eligibility for SEB.
38The applicant spent a significant amount of time in evidence on a conversation she had with Ms. Leeming in September 2007 (before the business concept had been submitted). Both parties agree the conversation took place and that the conversation was about marketing the business. Ms. Leeming testified that she would have said that an applicant cannot advertise the business prior to its start date. The applicant understood that Ms. Leeming advised her that the opportunity they were discussing was a good one and that the applicant could advertise the business prior to its start date. Based on the applicant’s understanding of this conversation, she did go out and promote the business. It is from this conversation that the applicant understood that Ms. Leeming had already approved the business long before the applicant met with Ms. Dunn. The applicant further testified that based on her understanding of the conversation with Ms. Leeming, the applicant undertook certain promotional activities which have resulted in damages to her because the business was subsequently not approved. I find that while Ms. Leeming would have discussed the merits of various marketing opportunities, she would not have advised the applicant that she was approved, as that would have been inconsistent with the program, inconsistent with Ms. Leeming’s understanding, and inconsistent with the information and materials provided at the workshops. Nevertheless, it is conceivable that the applicant relied on certain encouragements from Ms. Leeming as approval and did undertake the marketing efforts she described. However, any question of damages for this promotion is not based on any Code violation.
39I find that even if tarot could legally be included in the Code’s definition of creed, the decision to deny the applicant the SEB benefits was not based on tarot card reading; therefore, it is unnecessary for me to make a determination as to whether tarot in the context of this case constitutes a creed under the relevant case law set out in my Interim Decision.
40The Application is denied.
Dated at Toronto, this 10th day of September, 2009.
“Signed by”
Andrew M. Diamond
Member```