Christopher Newman v. Ontario Hockey Association, 2009 HRTO 1709

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Newman Applicant

-and-

Ontario Hockey Association, City of Toronto, O.H.A. Junior Hockey Club (1992) Limited o/a North York Rangers and Zach Smith Respondents

A N D B E T W E E N:

Christopher Newman Applicant

-and-

Sault Major Hockey Association, Corporation of the City of Sault Ste. Marie and Peter Florio Respondents

interim Decision

Adjudicator: David Muir Date: October 19, 2009 Citation: 2009 HRTO 1709 Indexed as: Newman v. Ontario Hockey Association

1These two Applications were filed on August 10, 2009, under section 34 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.

2These Applications are two of ten filed by the applicant, including four Applications pursuant to section 53(5), raising similar facts and issues. In 2009 HRTO 1288, the Tribunal deferred Applications 2008-00440-I; 2008-00622-I; 2008-00840-I; and 2009-01237-I pending the resolution of a number of preliminary issues raised in the four section 53(5) Applications. These Applications appear to raise very similar issues and the Tribunal may decide to defer these Applications as well. If any party wishes to make submissions on this issue, they may do so within 10 days of the date of this Interim Decision.

3The instant Applications are briefly summarized as follows:

2009-03163-I: The applicant, who identifies as a gay man, claims that the respondents have violated his rights under the Code and alleges that as a member of the public attending minor hockey games he was required to endure homophobic and other discriminatory slurs. The applicant alleges that the individual respondent, Zach Smith, a hockey player, made homophobic and other discriminatory remarks which the applicant could hear during the course of the hockey game.

2009-03166-I: The applicant claims that the respondents have violated his rights under the Code and 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. The applicant alleges that the individual respondent Peter Florio, another spectator at a hockey game, targeted the applicant with a homophobic slur.

4The Tribunal gave Notice of Intent to Dismiss the Applications as against the individual respondents on August 20, 2009, because the completed Applications did not make apparent how the individual respondents were engaged in the provision of a good, service or facility under the Code.

5In his submissions the applicant concedes that neither individual respondent was providing a service to him, but rather, they were both sharing and using the facility for a common purpose. The applicant states that the complaints both arise within the scope of the use of the facility and while the other respondents, as the respective owners of the facilities and hockey teams are also responsible for any discriminatory events that might occur in the facility during a hockey game, these two individuals are most responsible and who should be subject to the application of the Code.

6An application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction: Masood v. Bruce Power, 2008 HRTO 381; Morin c. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63.

7The question to be determined is whether or not it is plain and obvious that the individual respondents were engaged in the provision of a service, good or facility to the applicant within the meaning of the Code when the alleged discriminatory acts occurred.

8The respondents have indicated that they intend to bring preliminary requests to dismiss all of these related Applications on a number of bases including that the respondents do not provide a service within the meaning of section 1 of the Code to the applicant. It appears that the most fair, just and expeditious manner way of dealing with the Notice of Intent to Dismiss as it relates to Mr. Smith is to defer this issue as well, pending the outcome of the hearing of the broader preliminary issues raised by the respondents. If any party wishes to make submissions on this issue, they may do so within 10 days of the date of this Interim Decision.

9The respondent Florio’s involvement was as a spectator. In that capacity he cannot be said to provide a “service” to the applicant in any way. I find that it is plain and obvious that the relationship between them is not one that is regulated under the Code. The Application as against Peter Florio is dismissed.