Robinson v. Landmark Inn, 2010 HRTO 1543

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tanya Robinson Applicant

-and-

Landmark Inn Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: July 15, 2010 Citation: 2010 HRTO 1543 Indexed as: Robinson v. Landmark Inn

APPEARANCES

Tanya Robinson, Applicant ) On her own behalf Landmark Inn, Respondent ) Danalynn MacKinnon, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 19, 2009. The Application alleges discrimination on the basis of disability and race.

2After the issuance of a Case Assessment Direction on January 13, 2010, the applicant, who is not represented by counsel, requested disability-related accommodation pursuant to the Tribunal's Policy on Accessibility and Accommodation. On February 4, 2010, the Tribunal received information from the applicant confirming the link between a disability and the request. An adjournment was granted, a teleconference was held, and a further Case Assessment Direction and an Interim Decision, 2010 HRTO 1056, were issued. However, the applicant did not fully comply with her disclosure obligations under the Tribunal's Rules of Procedure. Some three weeks prior to the hearing date, the respondent had not received will-say statements for the applicant's proposed witnesses, and one of the witnesses was not named, although he was otherwise identified by reference to the alleged facts of the Application. The applicant had referred to certain documents, but had not produced them.

3In order to balance accommodation for the applicant and fairness to the respondent, the Tribunal issued a further Interim Decision, directing the hearing of the applicant's evidence only, 2010 HRTO 1393. That hearing was held on July 7, 2010.

4This Interim Decision deals with the respondent's request that the Application be dismissed because no prima facie case has been established. That request is denied, for the reasons stated below.

5The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Once the applicant establishes a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation, or raise a statutory defence, to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination. See Chau v. Olymel S.E.C.\L.P., 2009 HRTO 1386.

6As noted in Matthews v. C.A.W. Local 1285, 2010 HRTO 1116, at para. 13:

It is not difficult to establish a prima facie case of discrimination. The Tribunal does not hold applicants to an exacting standard of proof at this stage of the proceedings, given the Tribunal's access-to-justice mandate, and the longstanding interpretive principle of giving "large and liberal" meaning to human rights legislation: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (S.C.C.), [1987] 1 S.C.R. 1114.

7The applicant testified on her own behalf. She gave her evidence without referring to notes. The details of her evidence relating to the allegation of discrimination were consistent, and she maintained her position on cross-examination by counsel for the respondent. She did not appear to exaggerate her story in any way, and she readily accepted the existence of ambiguities, as suggested by counsel for the respondent.

8The following summarizes the evidence given by the applicant relevant to the issue of the establishment of a prima facie case of breach of the Code. The applicant testified that she had telephoned the respondent hotel to ascertain whether they had a smoking room available on November 20, 2008. She was told that they did, and she attended at the respondent hotel with two friends on November 20, 2008. She states that the clerk at the desk refused to rent the rooms, stating incorrectly that the applicant was drunk, and that the refusal was maintained by a member of the managerial staff of the respondent. The applicant asserted that she was not drunk, and in fact does not drink, and that she believes that this incorrect assumption on the part of the clerk was related to her Aboriginal status. As noted above, the applicant had also alleged disability as a ground of discrimination, but she agreed with the counsel for the respondent that she had no reason to suppose that the desk clerk knew that she had disabilities. She also readily agreed that, to her knowledge, persons of Aboriginal ancestry, including members of her own First Nation, had stayed at the respondent hotel in the past.

9Several relevant aspects of the evidence are not contested by the respondent. These include the applicant's Aboriginal ancestry, the fact that she attended at the hotel as indicated above on the relevant date, the fact that she was not permitted to rent the rooms she requested, and the fact that the applicant rented accommodation at two other local hotels for the night of November 20, 2008, and for the two following days. The respondent's position is that the real reason the applicant's request to rent a room was denied was that she did not, at the time she attempted to check in, have sufficient money to pay the security deposit it requires.

10Having considered the applicant's testimony, the parties' submissions, and the materials filed, I find that there is sufficient evidence to establish a prima facie case of discrimination. The respondent's request to dismiss is denied.

11Given my finding, this Application will proceed to a hearing to deal with the respondent's evidence and the submissions of the parties. In view of the material filed to date and the evidence already heard, some direction is in order.

12The applicant has apparently recently changed her mailing address. If she has not already done so, the applicant is directed to ensure that both the respondent and the Tribunal have her current address.

13The respondent has filed a list of witnesses. However, while the witness list indicates the topics to be addressed, there is no information about what the witnesses are expected to say. The respondent is directed to file with the Tribunal a revised list "summarizing each witness's expected evidence" (see Rule 17.2), copying the list to the applicant, by July 29, 2010.

14I will request the Registrar to set a further hearing date.

15Further procedural directions will be issued if necessary.