Jenna Habib v. University of Toronto and Karen Hughes, 2010 HRTO 1917

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jenna Habib

Applicant

-and-

University of Toronto and Karen Hughes

Respondents

DECISION

Adjudicator: David Shannon

Date: September 21, 2010

Citation : 2010 HRTO 1917

Indexed as: Habib v. University of Toronto

APPEARANCES

Jenna Habib, Applicant ) Self-represented

University of Toronto and ) Sari L. Springer, Counsel

Karen Hughes, Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated June 23, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 21, 2007.

2The applicant alleges she experienced discrimination because of race, ancestry, ethnic origin and or colour in goods and services, contract and vocational association when she was cut from the roster of the University of Toronto (the “corporate respondent”) varsity women’s hockey team. Karen Hughes, the personal respondent, was the coach of that team and bore responsibility for the team makeup. She has been a women’s ice hockey coach at the varsity, national, and international level for several years. She was the assistant coach for three world championships and head coach for one as well as the assistant coach of the 2002 Olympic Team.

3The applicant suggests that there are many areas of discrimination arising from her not making the respondent team’s roster. I agree that services is an appropriate way to frame the analysis of discrimination given the alleged facts. Organized sports has been found to be a “service”. I do not believe that goods, contract, or vocational association, as articulated in the Code, comport with the facts alleged, and therefore will limit my discussion to the area of “services” .

The Law

4Discrimination based upon race, ancestry, ethnic origin, or place of origin can take on subtle and covert forms with seemingly benign criteria imposing arbitrary and discriminatory barriers. Subtle forms of discrimination can often only be detected upon examining all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture may lead to an inference that racial discrimination was a factor. See: Smith v. Ontario (Human Rights Commission) [2005] O.J. No. 377 (Ont. Div. Ct.), 2005 CanLII 2811 (ON S.C.D.C.); Abdolalipour v. Allied Chemical Canada Ltd (1996), C.H.R.R. Doc. 96-153 (Ont. Bd. Inq.)

5Notwithstanding the many subtleties that may be ascribed to determining whether there was discrimination based on race, ancestry, ethnic origin, or colour, the applicant must establish a prima facie argument that leaves the respondent with conduct that must be explained. If the respondent does not prove on a balance of probabilities there was no discrimination or, alternatively, it was legitimately defensible under the Code, then an infringement will be established. Therefore, I must first consider whether the applicant has established a prima facie case of discrimination based on race, ancestry, ethnic origin, or place of origin before considering the respondents’ evidence.

6The applicant alleges that she was differentiated in her treatment by the ice hockey coach when: she was confronted about playing for both the field hockey and ice hockey teams; the personal respondent met with the applicant and her parents; she was disciplined in front of the hockey team for being a disruption in the dressing room, and ultimately for being cut from the ice hockey team. On their face, these concerns require an answer. For the reasons which follow, I am satisfied with the respondents’ explanation, and find the respondents have demonstrated on a balance of probabilities that they did not discriminate based on race, ancestry, colour, ethnic origin, or place of origin.

The Evidence and Analysis

7In the spring of 2006, the applicant initiated emails with the coach of the corporate respondent’s women’s field hockey team and the personal respondent about playing on both teams. Initially there was no concern about her playing both sports. However, she was later told she must chose one sport or the other. The applicant alleges that this is part of a pattern of treatment that arose from a racialized bias against her.

8The personal respondent denies this. The rules allow students to play more than one sport. However, she did believe that it would be difficult to balance two sports and maintain academic standards, and shared this opinion with the applicant. The personal respondent suggested that the applicant may have misinterpreted her suggestion to consider playing for the field hockey team as an ultimatum. It was not until she reached the conclusion the applicant would be unable to make the ice hockey team roster that the personal respondent suggested the applicant play field hockey. In the end the field hockey coach had set the team roster in place, and the applicant did not want to play for that team either.

9In determining the credibility of witnesses, the Tribunal has made use of the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

I must therefore follow the preponderance of probabilities that provide consistency to the witness‘ story within its context.

10I accept the personal respondent’s version of the facts, and believe that the applicant misinterpreted her suggestion to play field hockey. The applicant provided a full explanation for her concerns that playing two varsity sports may be too much work when added to a full academic programme. I believe that if the applicant was good enough to make the ice hockey team while playing field hockey she would have remained on the team roster. The discussion about playing both sports was a logical outcome respecting priorities. It was not driven by a discriminatory concern for such personal characteristics as the applicant’s race or place of origin.

11Based on the encouragement of the field hockey coach and the personal respondent, the applicant decided to enrol at the University of Toronto. Email correspondence from the personal respondent suggests that she was pleased with this news and advised the applicant that if she was to visit the campus during the summer then a meeting or campus tour could be arranged.

12The applicant testified that she came to Toronto for such a meeting during the summer and the personal respondent was a “no show”. The applicant felt slighted by the absence and in retrospect believed that it was one indicator of several that the personal respondent had a racist attitude.

13The personal respondent explained that she has a very busy job off campus and is only a part-time coach. As a result she is frequently away from campus, especially in the summer months. Furthermore, the applicant did not confirm a time of arrival at the campus and therefore the personal respondent was unaware that a meeting was planned.

14The applicant did not suggest that she had confirmed a meeting, nor was it supported by correspondence produced at the hearing. The personal respondent therefore could not reasonably have concluded that there would be an on-campus meeting. Accordingly, I accept that the failure to meet was not motivated by concerns for the applicant’s race, ancestry, ethnic origin and or colour.

15The applicant attended a dry land training session and team meeting on June 24 where her parents joined her. She believes that the personal respondent was “clearly shocked” to see “three East Indians” of Muslim heritage standing in front of her. She felt that the personal respondent ignored her and her family and refused to look at them despite their efforts to attract her attention.

16The personal respondent could not remember the incident, but suggested that she was highly distracted that day because there were several athletes arriving. This created several coordination and administrative problems to overcome immediately so that the coaches and all players could have an effective off-ice training session. This training session was important for the entire team because it would set individual plans in motion for the athletes to maintain their fitness throughout the summer months.

17I find that the personal respondent could have been more diplomatic or demonstrated more refined hospitality skills, but her treatment of the applicant and her parents was not motivated by discrimination based on race or the other alleged grounds. Her concern for the needs of all athletes at the off-ice training and several superseding administrative matters left any absence of attention to the applicant unmotivated by discrimination.

18At the June meeting, the applicant, along with all other athletes, was asked to maintain a fitness log. This would allow the coaching staff to detect any concerns with the players’ physical well-being and or assess whether their fitness development was remaining on target.

19The applicant states she never received the fitness logs. However, the respondents produced an email to the applicant which states the fitness logs were attached. The applicant did not respond to advise she was unable to open or access the attachments notwithstanding she had just attended the meeting where the logs were discussed and she was asked to maintain them.

20In the circumstances I am satisfied the fitness log forms were sent to the applicant. Whatever caused the absence of the fitness logs was not motivated by concerns for race or other alleged grounds.

21In September, ice hockey camp opened and the applicant did not show. She had emailed to advise that she was in New York training with the field hockey team. She still had not submitted any fitness logs, and the personal respondent left her off of a group email advising prospective players who had kept up their fitness logs of the September/October schedule. The personal respondent later emailed the applicant with this information after becoming aware she had been left off of the group email.

22The applicant alleges that she was left off the group email because the personal respondent wanted to exclude her from the team because of her race. I believe that the applicant bears some responsibility for being left off the group email because she did not maintain fitness logs or regular communication with any member of the coaching staff. Also, the personal respondent moved quickly to rectify the situation. Therefore, I find that race or other grounds did not play a factor in the decision to leave the applicant off of the group email.

23On September 22-24, the applicant attended a team-building session out of town. The general impression was that the players bonded, including the applicant. In fact the personal respondent indicated that throughout the tryout the applicant was a positive influence in the locker room with her teammates.

24The applicant was not dressed for a game during the pre-season when the personal respondent entered the dressing room to give final game instructions for the players about to go on to the ice. The applicant felt singled out when coach told her to either be quiet or get out of the dressing room. She did not indicate that the request was accompanied with any racial epithets or comments based on negative stereotypes.

25The respondent does not remember the incident or singling out the applicant. I accept that the applicant was told to stop being what may be termed a disruption in the dressing room. As high performance athletes from whom excellence and winning is expected, I will infer that the dressing room just prior to play at the varsity level is a time of high intensity where the coach quite correctly will want to gain full team attention in order to deliver instructions, garner common focus and create team vision for the imminent game before them. I accept that at the imminent moment of play, unvarnished truths and statements lacking in sensitivity or gentility may be made. Given the context of where the alleged comment was made, I therefore do not believe that race or the other alleged grounds of discrimination were factors when the applicant was asked to be quiet while she was being a disruption in the dressing room just prior to game time.

26During the team-building retreat in September the applicant and the other players was asked to fill in a self-evaluation form. That evaluation form provided broad criteria for assessment which covered such aspects of the game as skating, puck control, shooting, checking, and core attitudinal qualities. The applicant gave herself an overall score of 3.5 out of 5. Later in October, the personal respondent assessed the applicant at 1.5 out of 5.

27The personal respondent met with the applicant at the retreat where they discussed areas in need of skill improvement. The personal respondent indicated that they wanted to keep the applicant on the team into October in order to see if her skills would improve.

28The personal respondent filled in the player evaluation form in late October noting that the applicant’s skating “struggles due to high kick at back, and lack of agility. Has difficulty with timing of support and often watches play versus moving to support. Very slow on transition in staying with the play.” Respecting her puck control she “handles ok in small spaces, but slow in traffic but is unable to maintain speed while passing and receiving. Does not keep feet moving when passing or receiving.” Her shooting skills were noted as “finishes around the net in close when open…in game play has difficulty getting to a position to be effective”. Comments made about her checking were “plays primarily an offensive side of puck so rarely in a good position to check. has difficulty with angling and close due to lack of agility…” finally her comments made respecting her core qualities noted the applicant “falls behind the average from a fitness prospective, does not complete drills fully, paying attention to all elements of the drill.” The final comment was she is “ranked 14th on the roster and weakest remaining player.”

29It was decided in late October that two more players had to be cut from the team. The slower and less skilled players were requiring too much time from the coaching staff, and the better players needed to increase the tempo of practice and games. In the view of the personal respondent these were high performance athletes and excellence was demanded in order to be the best varsity team in Canada. The applicant was the second-last individual to be cut from the ice hockey team in 2006.

30The respondents submit that the decision was based on an assessment of the applicant’s skills and physical and mental development. While the final decision of player selection rested with the personal respondent, she included the input of all coaching staff and trainers who attended throughout the on- and off-ice training sessions. I accept that the decision was based on objective criteria and that the applicant’s race, colour, ancestry, and ethnic origin were not factors in that determination. On the evidence before me I am satisfied the applicant’s current hockey skills and physical development were not at a level that made her qualified to remain on the Team.

31The respondents called Bruce Kidd, Dean of the corporate respondent’s Department of Physical Education, as well as Safiya Muharuma as a witness. Ms. Muharama is a racialized woman who played ice hockey on the respondents’ team from 1999-2005. Based on my findings of the material allegations it is not necessary to consider their evidence in order to reach a determination in this matter.

Conclusion

32I note that there may have been miscommunication between the applicant and the personal respondent. At times the personal respondent may have appeared non-cordial to the applicant and/or her parents during meetings, or training sessions. I find however that it was not motivated by race or the other alleged grounds of discrimination. The respondent has provided a reasonable explanation for all of the applicant’s concerns respecting discrimination. The evaluation of the applicant’s hockey skills was objective, and in the end the applicant was less qualified than the other players for the women’s ice hockey team.

33Accordingly, I do not find that applicant has demonstrated, on a balance of probabilities, that the respondents breached the Code by discriminating against her based on her race, ancestry, colour or ethnicity. The Application is dismissed.