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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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**B E T W E E N:**
Mihai Samoila
Applicant
-and-
Clifford Laviolett
Respondent
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**decision**
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**Adjudicator:** Faisal Bhabha
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**Date:** July 15, 2010
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**Citation:** 2010 HRTO 1547
**Indexed as:** Samoila v. Laviolett
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[1] This is an Application filed November 28, 2008 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 area of contracts on the basis of ancestry, place of origin, citizenship and ethnic origin.
[2] The respondent did not file a Response or participate in these proceedings. In an Interim Decision, [2010 HRTO 136](https://www.minicounsel.ca/hrto/2010/136) dated January 21, 2010, the Tribunal ruled that the respondent is deemed to have accepted all of the allegations set out in the Application and to have waived all rights to notice or participation in these proceedings. On June 14, 2010, a hearing was held to hear from the applicant.
## FACTUAL BACKGROUND
[3] The following facts are based on the allegations in the Application and on the applicant’s brief oral testimony. Because the respondent did not participate in the proceedings, no contradictory evidence was adduced.
[4] In or around October 2007, the applicant contracted with the respondent to replace the roof of his home. The applicant was referred to the respondent by a co-worker. The two met and the respondent quoted the applicant a price of $2,900.00 for the job. The applicant paid up front, and the respondent agreed to complete the job before Christmas. The job was never begun let alone completed, and the applicant’s money was never returned.
[5] Between December 2007 and May 2008, the applicant phoned the respondent numerous times. The respondent gave various reasons for the delay, and eventually began evading the applicant’s calls. In May 2008, the applicant sent a demand letter through counsel, to which he received no response. In June 2008, the applicant filed a complaint with the Hamilton Police Fraud Unit. On April 17, 2009, the applicant met with a detective in the Fraud Unit. He was told that the police had spoken with the respondent and confirmed that he is a roofer carrying on a legitimate business. The police told the applicant that the respondent had promised to return his money within the month. The money was never returned.
[6] The applicant came to the conclusion that if the respondent is a legitimate roofer, performs work for others, but refused to complete the job for the applicant, it must be based on Code-related grounds.
[7] The applicant was born in Romania and speaks English as a second language. He testified that he assumed the respondent knew of his ancestry through their mutual contact, the applicant’s co-worker. Although the respondent never directly expressed any discriminatory attitudes towards Romanians or new Canadians, the applicant infers, based on the respondent’s refusal to honour the terms of the contract, that his actions in respect of the applicant must have been motivated by discriminatory considerations. Acknowledging that this conclusion is based on an inference, the applicant argued that there was no other reasonable explanation for the respondent’s conduct.
## ANALYSIS AND DECISION
[8] Section 3 of the Code provides that:
> Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
[9] It is well known that the standard of proof in determining whether a breach of the Code has been established is the balance of probabilities. This means that it must be more likely than not that the respondent’s failure to fulfil the terms of contract was motivated or affected by the applicant’s Code-protected characteristics.
[10] There is no direct evidence of discriminatory considerations in the respondent’s conduct. The applicant asks that I draw an inference on the basis of several key facts. Those facts are as follows:
- The respondent is a roofer carrying on a business and offering his services to the public;
- The respondent contracted with the applicant, took payment in advance, but never completed the job;
- The applicant immigrated to Canada from Romania;
- The respondent can be presumed to have known about the applicant’s ancestry through their mutual contact, the applicant’s co-worker; and
- The applicant speaks English as a second language, which would have been apparent to the respondent.
[11] While the inference the applicant urges me to draw is a theoretical possibility, there are also other plausible explanations that would not necessarily involve discrimination. In fact, the applicant himself initially seemed to think the respondent had committed fraud, not an act of discrimination, and pursued the matter with the police. It was only after the police determined that the business was legitimate that the applicant turned his attention to the possibility of discrimination.
[12] The absence of fraud is not a sufficient basis for me to reach the same conclusion as the applicant. There are other forms of dishonesty, miscommunication or abuse that could give rise to similar facts but which do not involve discriminatory considerations. The applicant bears the onus of demonstrating that discrimination is the more likely reason.
[13] Assuming the respondent unjustly enriched himself at the applicant’s expense, his actions must still be connected by evidence or reasonable inference to a protected ground. It is not a breach of the Code to be an unscrupulous tradesperson.
[14] If the respondent was in fact motivated by discriminatory considerations, it seems equally plausible that he would have refused to contract with the applicant in the first place. The simple fact that the applicant was vulnerable and was exploited by the respondent does not lead logically to a conclusion that, on a balance of probabilities, the respondent was motivated in whole or in part by discriminatory considerations. The mere possibility of discriminatory motivation is not sufficient to find a breach of the Code.
[15] On balance, I am therefore unable to conclude on the facts before me that it is more likely than not that the respondent breached his contract with the applicant because of his Code-related characteristics.
[16] Accordingly, the Application is dismissed.
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Dated at Toronto, this 15th day of July, 2010.
“Signed by”
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Faisal Bhabha
Vice-chair
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minicounsel