Roberts v. Royal LePage Partners Realty, 2010 HRTO 1930

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Roberts

Applicant

-and-

Royal LePage Partners Realty Inc.

and Morrissa Amsel

Respondents

DECISION

Adjudicator: Mark Hart

Date: September 23, 2010

Citation: 2010 HRTO 1930

Indexed as: Roberts v. Royal LePage Partners Realty

APPEARANCES BY

Mark Roberts, Applicant ) Self-represented

Royal LePage Partners Realty Inc., ) Al Kroch, Representative Respondent )

Morrissa Amsel, Respondent ) Not appearing )

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 August 20, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on November 24, 2006.

2The applicant alleges that he experienced discrimination in employment because of his creed contrary to sections 5 and 9 of the Code, when he was terminated after requesting and being granted time off to observe Good Friday and Easter Monday in April 2006.

3The hearing in this matter was held on September 22, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(5) applications proceed in an expeditious manner.

4At the commencement of the hearing, the applicant renewed his request for an adjournment, which had been denied to him by Interim Decision dated September 20, 2010, 2010 HRTO 1902. I heard submissions from the parties and then reserved my decision on the applicant’s request while I invited submissions from the parties on the issue of whether or not the applicant’s allegations support a prima facie case of discrimination and regarding the status of the personal respondent.

5In keeping with the expeditious nature of s. 53 applications, I issued the following oral ruling after hearing and considering the parties’ submissions:

1. At the hearing this morning, the applicant has renewed his request for an adjournment, on the basis that Legal Aid issued a certificate for representation at the hearing yesterday and that the certificate is now in the hands of a lawyer who is considering whether to sign on to the certificate and agree to represent the applicant in this matter.

2. The applicant states that he initially applied for Legal Aid when this matter was before the Commission, and was granted a certificate to obtain an opinion letter. After the matter was transferred to this Tribunal, the applicant states that he applied for and obtained a further Legal Aid certificate for an opinion letter, but this certificate expired before he was able to get a lawyer to accept it. The applicant states that he subsequently became aware that he needed to re-apply to Legal Aid for a further certificate, which he states that he did on July 27, 2010. The applicant explains his delay in filing for this certificate on the basis that he believed that his previous certificate was still valid. The applicant did not bring any documentation relating to his various Legal Aid applications to the hearing.

3. I am not satisfied that this provides a sufficient or proper basis for me to change my previous decision to deny the applicant’s request for an adjournment. The Application in this matter is dated August 20, 2009. On the face of the Application, the applicant declined mediation and requested that this matter proceed to a hearing. So he has known for over a year now that this matter was proceeding to a hearing, and should have taken more timely steps to obtain legal representation, including being more diligent in applying for Legal Aid and in seeking out counsel to accept the original certificate for an opinion that the applicant states was granted and then expired.

4. Further, the applicant was notified on April 22, 2010 that this matter would be proceeding to a hearing today on September 22, 2010, and so had a full five months notice of the hearing. While the applicant states that his delay in re-applying for a Legal Aid certificate was due to the fact that he did not know that the previous certificate was no longer valid, this does not explain his delay in getting a lawyer to accept the previous certificate before it expired nor does it sufficiently explain why he was not aware that this certificate had expired so as to justify the lateness of his most recent application for Legal Aid on July 27, 2010.

5. This case has been ongoing since the original complaint was filed in November 2006, almost four years ago now. The corporate respondent has appeared and is ready to proceed. Despite repeated requests for confirmation of the address for the personal respondent, this information has not been forthcoming from the applicant.

6. I further have had regard to the fact that this is not a particularly complex case, and the facts upon which the applicant relies to support his allegation of discrimination are within his knowledge.

7. I also have had regard to the fact that even though the applicant states that a Legal Aid certificate has been issued, he does not as of this morning have a lawyer who has agreed to accept the certificate and represent him. At best, the applicant states that the lawyer to whom the certificate was sent is reviewing the case and considering whether to agree to be retained. No lawyer is currently on the record on the applicant’s behalf in this matter, nor has the Tribunal received any correspondence from legal counsel indicating an intention to be retained, nor has any lawyer appeared at the hearing to support the applicant’s adjournment request.

8. In consideration of all of these factors, it is my view that there is no sufficient or proper basis to alter my decision to deny the applicant’s adjournment request, and the request is denied.

9. At the hearing this morning, after hearing submissions from the parties on the renewal of the adjournment request and reserving my decision on that issue, I invited submissions on two further issues.

10. First, the corporate respondent has raised an issue about whether or not the applicant’s allegations support a prima facie case of discrimination. I heard from the applicant as to the material facts upon which he relies in support of his allegation that he experienced discrimination because of his creed. The applicant states that he informed the personal respondent that he was Catholic, that he requested Good Friday and Easter Monday off in April 2006 and this was granted to him, and that he was thereafter terminated when he reported for work the following Tuesday. The applicant states that he believes that he was terminated because he had requested those days off, and also believes that he should have been allowed to work for two days to make up for the two days he had taken off.

11. I asked the applicant whether there was any other evidence that he was relying upon in support of his allegation of discrimination, for example had the personal respondent said anything to him to cause him to believe that she was discriminating against him because of his creed, and the applicant stated that there was no further evidence that he would be relying upon in support of his allegation of discrimination.

12. In my view, the bare facts asserted by the applicant, even if true, are not sufficient to support a prima facie case of discrimination. As recently re-stated by the Ontario Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, in order to establish a prima facie case of discrimination, the applicant must allege sufficient facts to support an inference of discrimination in the absence of any explanation by the respondent. It is not enough merely that the applicant is a member of a protected group, such as being Catholic in this case, and suffered adverse treatment, such as being terminated or not being allowed to work the next two days. In this case, I am not satisfied that the very bare facts asserted by the applicant are sufficient to support a prima facie case, even in the absence of any explanation from the respondents.

13. Accordingly, I find that the applicant has not alleged sufficient material facts to support his allegation of discrimination because of creed. As a result, the Application is dismissed.

14. Finally, I also addressed with the parties the status of the personal respondent in this proceeding. The Tribunal had previously notified the parties that its mail to the personal respondent had been returned, and asked the applicant to confirm the personal respondent’s current address. The applicant states that he has a telephone number for the personal respondent and has spoken to her to inform her of the Application, but that she refused to talk to him. The most recent address for the personal respondent, who no longer works with the corporate respondent, was provided to the applicant and the Tribunal, and the applicant states that he has sent material to this address and it has not been returned to him. Nonetheless, the Tribunal’s material has been returned and the Tribunal has not received any other evidence to verify that the personal respondent continues to reside at this address. As a consequence, the personal respondent has not received notification of the hearing today. In the absence of any evidence to verify the personal respondent’s current address, I am not satisfied that this matter should proceed against her in any event and this supports a further basis for dismissal of the Application as against the personal respondent.

6For all of these reasons, the Application is dismissed.

Dated at Toronto, this 23^rd day of September, 2010.

”signed by”____________

Mark Hart

Vice-chair