HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mesfin Yikuno
Applicant
-and-
Unity for Human Rights and Democracy, Asaminew Abebe, Yousuf Omer, Esayas Teshome and Worku Mekonen
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Yikuno v. Unity for Human Rights and Democracy
1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).
2The Application was heard on July 19, 2010. The applicant and the personal respondents were present. The respondents had several witnesses available to testify and they were present at the hearing. A translator in the English and Amharic languages was present but her assistance was not required.
3The Application alleges discrimination on the grounds of race, ancestry, place of origin, citizenship, ethnic origin, age and association with a person identified by a Code ground.
4The respondent, Unity for Human Rights and Democracy, is an organization created to increase awareness about human rights issues in Ethiopia. The organization was incorporated in February 2007. The personal respondents are members of the organization. The applicant was also a member. He testified that he was one of the founding members of the organization. On or about March 26, 2009, the Executive Committee of the organization decided that the applicant was no longer welcome as a member. He was told that he could no longer attend meetings and that if he did attend, the police could be called.
5The minutes of the meeting at which this decision was reached indicate that the reason for the decision was that the applicant was “very argumentative, abusive, erratic, [loud] and some times vulgar with members who disagree with his opinion during formal and informal meetings.” The Executive Committee also dealt with a complaint from another member of the organization who indicated that he was not prepared to participate in “any forum” where the applicant was present. According to the minutes, the Board had been informed by other members of the organization that they were not comfortable attending meetings at which the applicant was present.
6The applicant alleges that this decision was the final event in a series of discriminatory actions by the respondents. He alleges that he was subject to discrimination throughout the time of his association with the organization, primarily on the basis that he is an “Amhara and or Agew” and also on the grounds of creed, age, and place of origin.
7The narrative part of the Application makes clear that there were intense discussions at meetings of the organization concerning how best to respond to political developments in Ethiopia. While the members generally oppose the current governing party in Ethiopia, there are different opinions about which of the opposition parties to support and different ideas about how to support and organize opposition to abuses committed by the current government.
8It is also clear from the Application that the applicant had a number of clashes with one of the personal respondents in particular.
9The respondents deny the allegations. The respondents state that most of the personal respondents have the same cultural and racial background as the applicant. They assert that the organizational respondent is dedicated to the advancement of human rights and that membership is open to all who share the objectives of the organization.
10The respondents submit that the Application should be dismissed because the applicant has not shown that he was subject to discrimination on the basis of a Code-protected ground. The respondents agree that the applicant was told that he was not welcome as a member of the organization and that the police could be called if he attended meetings. The respondents submit that the reason for this was that the applicant was very disruptive. He was not prepared to abide by the decisions of the organization that he did not agree with, was disruptive at meetings and made unsubstantiated allegations against members, including allegations of criminal actions.
11After hearing the opening statements of the parties, I indicated that I needed to hear some evidence before dealing with the respondents’ request that the Application be dismissed. I heard evidence from the applicant, Mr. Omer and Mr. Teshome, who are both personal respondents, and from Abebe Yigezu, a witness who was present on behalf of the respondents.
12I noted that the Human Rights Tribunal of Ontario only has authority to deal with allegations of discrimination and harassment that relate to the grounds that are set out in the Code. The Tribunal cannot deal with all allegations of unfair treatment, but only those that relate to the grounds set out in the Code. One specific area that the Tribunal does not have jurisdiction over is allegations of differential treatment based only on differences of political opinion.
13I noted that the Application makes broad assertions of discrimination based on various Code-related grounds, but provides no particulars. The applicant had indicated that he would be calling a number of witnesses to support his allegations but did not provide any information about what these witnesses might say and did not in fact have any witnesses at the hearing. Before the hearing, the applicant filed a package of documents with the Tribunal and the respondents. Most of these documents were in the Amharic language. The Tribunal advised the applicant that documents that a party wishes to rely on must be in English or French, or be translated into one of those languages. The applicant did not file a translation of the documents and nor did he file any new documents. The fact that documents must be filed in English or French was reiterated in a Case Assessment Direction that I issued before the hearing.
14At the hearing, the applicant advised that he had additional documents with him that were also in Amharic. He proposed that the translator could translate the documents. The respondents opposed this request. After some discussion about the nature of these documents, it was not clear that they were relevant to the issue of whether the applicant had experienced discrimination or harassment on a Code-protected ground. I did not permit the applicant to introduce the new documents as they were not filed in advance of the hearing as required by the Tribunal’s Rules and it was not clear that they were relevant. I also did not permit the applicant to ask the translator to translate the documents previously filed.
15I told the applicant that he had the onus to show that he has been subject to discrimination or harassment on the basis of a Code-protected ground. I indicated that I did not think that it would be helpful for him to read the narrative set out in the Application as I had read that before the hearing. He was told that it would be necessary for him to provide some evidence of discrimination or harassment contrary to the Code and that if he could not do so, the Application could be dismissed.
16The applicant testified that he was subjected to jokes and racial slurs at meetings of the organization. However, he could not recall an example or any specific occasion when this occurred. He said that no one ever said anything about the fact that he was Amharic or otherwise commented on his race or place of origin.
17The applicant testified that an example of the discrimination that he experienced occurred in December 2008, following the arrest of a leading opposition leader in Ethiopia. The organization formed a Task Force of which he was a member. However, the Task Force was disbanded. The applicant alleged that this was because of discrimination against him but did not explain how this was related to a Code-protected ground or provide any evidence to suggest that there was any connection to a Code-protected ground. He indicated that there were different opinions about how best to respond to the situation in Ethiopia based on different political views.
18Mr. Omer testified that the Task Force was disbanded because the applicant was too disruptive. The organization developed other strategies in response to the arrest of the opposition leader in Ethiopia, which are ongoing.
19Concerning his allegations about discrimination based on creed, the applicant testified that he is a member of the Ethiopian Orthodox Tewahido Church, a Christian sect. Fasting is an important tenet of the Church. On one occasion, he was participating in the Fast of the Prophets. He testified that he was at a meeting and one of the personal respondents produced food and made a comment about fasting, indicating that he did not agree with fasting. He could not recall what exactly was said. In the narrative of the Application, he indicated that “immediately after the meeting was over, I was pressured to leave the office so that they could illegally continue talking against me without my presence.”
20The applicant was asked if there were any other examples of discrimination based on creed. He testified that Mr. Omer told him a story about his father, who was a Muslim, who got along well and worked together with a Christian man. The applicant could not explain how this showed discrimination based on creed.
21The applicant was asked to provide evidence of any occasion when he was discriminated against based on a Code-protected ground. He said that he was not dealt with fairly when he was asked to leave the organization because there was no due process. He could not recall anything that might show that this occurred because of a Code-protected ground. He said that another example of discrimination was that a good friend was promoted instead of him. He did not know the racial or cultural background of his friend but thought that his friend likely was of a different racial and cultural background than him.
22Abebe Yigezu is a member of Unity for Human Rights and was a witness called by the respondents. He testified that the applicant is quarrelsome and never went along with the decision of the majority at meetings. He accused the Board members of a different organization of criminal activity and some of those people are members of the Unity for Human Rights. Mr. Yigezu testified that the applicant was suspended from an earlier organization because of his behaviour. The applicant was invited to cross-examine the witness but his questions did not relate to the allegations in the Application.
Conclusions
23The hearing in this matter took place from 9:30 am to 1:00 pm. In this time, I heard briefly from the respondents. Most of the time was available to allow the applicant to explain the basis for his allegations and to indicate what evidence might be available to support the allegations. We took several breaks to allow the applicant to collect his thoughts.
24After I had heard briefly from the respondents, including brief evidence from the witnesses indicated, and from the applicant, the respondents asked again that the Application be dismissed.
25The onus is on the applicant to establish a prima facie case of discrimination. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
26In cases that come before this Tribunal, an applicant must establish that there is a prima facie case of discrimination or harassment. A prima facie case is one that 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. The onus is on the applicant to establish a prima facie case of discrimination. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
27As discussed in Chau v. Olymel S.E.C\L.P. 2009 HRTO 1386, at paragraph 27:
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 (SCC), [1987] 1 S.C.R. 1114.
Yet, where an applicant clearly fails to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to proceed with the Application and to require the respondent to bear the onus of making out a reasonable defence: see Jagait v. IN TECH Risk Management, 2009 HRTO 779 at para. 19
28If the applicant can establish a prima facie case, the next question is whether the applicant can establish a factual basis to the allegations that could lead to a finding that there has been an infringement of the applicant’s Code-protected rights.
29In circumstances where there has been a breakdown of a relationship between the applicant and the respondents, it is not sufficient for the applicant to allege that the breakdown occurred because of discrimination or harassment on a Code-protected ground. The applicant must also be able to show that there is some evidence that supports the allegation. This does not mean that the applicant must be able to prove that the allegations are true. At this early stage, the applicant only has to establish that there is some supporting evidence or a reasonable prospect that such evidence is likely to come to light.
30If the applicant cannot show that the allegations have a factual basis and that there is evidence that will at least potentially show actual discriminatory or harassing behaviour, it may be appropriate to consider whether it is fair to proceed to a full hearing.
31In some cases, the fact that there is no factual basis to the allegations may be clear after hearing evidence from the applicant. In other cases, it may be necessary to hear evidence from the respondents or other witnesses. The nature and extent of the evidence will vary from case to case. Section 43 of the Code gives the Tribunal to conduct hearings in a way that is fair, just and expeditious and the Tribunal’s Rules of Procedure set out various methods that can be used to achieve that result. These include the power to determine the order in which issues in a proceeding will be considered and determined, define and narrow the issues, determine and direct the order in which the evidence will be presented, and question a witness.
32In this case, the applicant has established a prima facie case. He has made general allegations that he experienced discrimination and harassment on a number of Code-protected grounds. In particular, he alleges that the reason he was asked not to attend future meetings of the organization because of discrimination against him on the part of the respondents. The allegations invoke the Code and if they were believed, would establish a violation of the Code in the absence of a response from the respondents.
33However, the applicant was not able to show that there is a factual basis to the allegations and could not establish a reasonable prospect that evidence might emerge that would show actual discriminatory or harassing behaviour.
34The applicant was able to provide particulars regarding only the allegation that one of the personal respondents made a negative comment about fasting. However, he was unable to recall what was actually said and did not suggest that he would be able to produce any evidence that might corroborate that the comment was made or that if something was said, it constituted harassment or discrimination under the Code.
35The applicant’s evidence confirmed that he did not get along with some of the personal respondents. His evidence suggested that this was partly due to personality differences and partly to differences of political opinion. As discussed above, the Code does not apply to allegations of general unfairness, personality clashes or differences of political opinion not tied to a Code ground.
36In considering all of the evidence, I find that the applicant has not shown that there is a factual basis to the allegations of discrimination and harassment on Code-protected grounds. I conclude that the Application must be dismissed.
Dated at Toronto, this 5th day of August, 2010.
”signed by”______________
Brian Cook
Vice-chair