Yota Hsu v. The Hamilton Street Railway Company, 2010 HRTO 724

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yota Hsu

Applicant

-and-

The Hamilton Street Railway Company

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 31, 2010

Citation: 2010 HRTO 724

Indexed as: Hsu v. Hamilton Street Railway

1In this Application, filed under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) on September 15, 2009, the applicant alleges that the respondent discriminated against him on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin and age in respect of transportation services. The Application alleges that in, July 2009, a bus driver called the applicant over so that the bus driver could check his student identification very thoroughly and that this violated the applicant’s privacy and damaged his public reputation.

2The respondent filed a Response to the Application and a Request for an Order during Proceedings seeking to have the Application dismissed. The respondent submits that the Application does not raise an issue under the Code and is therefore not within the Tribunal’s jurisdiction. The respondent notes that the applicant’s allegations largely relate to the manner in which the bus driver was operating the bus and have nothing to do with alleged discrimination on a prohibited ground under the Code.

3The applicant did not file a response to the Request to Dismiss the Application and the time for doing so has passed.

4The applicant alleges that the bus driver’s actions were discriminatory. When asked to explain why he believes that he was discriminated against on the basis of race, colour, ancestry, place of origin, citizenship or ethnic origin, he states only:

I must ask this particular driver why check my ID with that absolute fake ID find attitude? Based on what for him to determine my ID is fake, to be treated differently.

5When asked why he feels that he was discriminated against on the basis of age, he asserts that the bus driver does not seem to check McMaster employee identification “like those”.

DECISION

6I cannot agree with the respondent that this Application is outside of the Tribunal’s jurisdiction. An Application will be within the Tribunal’s jurisdiction where the applicant alleges that s/he experienced differential treatment because of a prohibited ground under the Code. Here, a fair reading of the Application leads to the conclusion that the applicant is alleging that the bus driver scrutinized his identification to see if it was fake because of the applicant’s race, colour, ancestry, place of origin, citizenship, ethnic origin and age. Accordingly, the Application is within the Tribunal’s jurisdiction.

7Having said that, there is a real question whether the applicant establishes a prima facie case of discrimination under the Code. As is always the case in hearings before the Tribunal,

[t]he 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 Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C) at para. 28. 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. (Jagit v. IN TECH Risk Management, 2009 HRTO 770 at para. 18)

8The Tribunal has also held that a respondent should not be required to respond to defend allegations that do not raise a prima facie case of discriminatory conduct under the Code: Chau v. Olymel S.E.C/L.P., 2009 HRTO 1386, at para. 29.

9If appropriate, the Tribunal will hear the parties on this issue at the hearing scheduled to address the merits of the Application.

10I am not seized.