Sartor v. Access AIDS Network, 2010 HRTO 763

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Sartor

Applicant

-and-

Access AIDS Network

Respondent

case resolution conference DECISION

Adjudicator: David Shannon

Date: April 8, 2010

Citation: 2010 HRTO 763

Indexed as: Sartor v. Access AIDS Network

AppearanceS BY

Norman Sartor, Applicant ) On his own behalf

) Kathleen Stokes, Counsel

Access AIDS Network , Respondent )

introduction

1This is an Application dated November 12, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O, c. H.19, as amended, (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on May 9, 2008 and abandoned upon filing this Application.

2The Application alleges discrimination based on sexual orientation. The applicant self-identifies as heterosexual. The applicant believes that the respondent has denied services to both he and all heterosexuals by being homocentric to the exclusion of all heterosexuals.

3At the end of receiving applicant’s oral evidence, the respondent asked me to dismiss the Application for failure to establish a prima facie case. The Request is allowed.

Facts and Background

4The respondent Access AIDS Network is a non-profit, community-based, charitable organization located in Sudbury, Ontario and Sault Ste. Marie, Ontario. The organization’s mission is to promote wellness, education, and promote harm and risk reduction for individuals, and the whole community, in a healing response to HIV/AIDS and related health issues.

5Amongst the services provided by the organization, Access AIDS Network provides educational presentations, workshops, information sessions and conferences on HIV/AIDS and other health related issues, safer sex, harm reduction, youth issues, anti-homophobia and heterosexism, and agency promotion. The respondent also provides support services which include supportive counselling, safe sex practices, disclosure, case management, treatment and health information, practical assistance, coming out issues, gender identity and healthy sexual relationships.

6The respondent conducts specifically targeted programs, which include “The Healthy Sexuality Program,” a program specifically designed to promote healthy sexuality for men who have sex with men, lesbian, gay, bisexual, transgendered and two-spirited youth, and to reduce homophobia and heterosexism in the districts of Sudbury, Manitoulin and Aloma. “The Healthy Sexuality Program,” is a full-time program, which is funded by Public Health Agency of Canada which must meet the criteria of the funder , “AIDS Community Action Program”.

7The applicant testified that at all times he felt welcomed by the respondent. However, on or about 30 January 2007, the applicant corresponded with staff of the respondent stating, amongst other things, that the organization is “entrenched in gay ideology, Access is incapable of dealing with heterosexual issues.” Also, on or about 19 February, 2007, he met with another staff member to complain that the respondent was being run by “homos” and, therefore, “regretfully” he would have to withdraw his volunteer application and abstain from associating with the organization.

8The applicant later complained by email correspondence to the President of the respondent, stating, amongst other things, that “once again you have evidenced ‘run by gays, for gays.’ How equipped is an organization comprised of gays able to develop programs for heterosexuals?”, and in a subsequent email indicated, that the organization’s specifically targeted programs indicate that the respondent “languishes in their ‘gay comfort zone.”

9At the time this Application was filed the Public Health Agency of Canada (PHAC) funded the Community Education and Prevention Program run through the respondent’s Sault Ste. Marie site. The funding for this program commenced on April 1, 2005 and ended on March 31, 2008. The Community Education and Prevention Program reported youth, women and service providers, as target populations. None of the target populations or statement of needs pertaining to those target populations identified services specific to any sexual orientation. As mandated by the PHAC, this program was in keeping with the provision of education for those identified populations which are vulnerable to HIV/AIDS.

10The respondent complies with the mandate of its funders, the Ontario Ministry of Health and Long Term Care, as well as the PHAC. The respondent also complies with the mandate of its affiliates, the Canadian AIDS Society and the Ontario AIDS Network.

11Programs are made available as funded. Specific target population programs/projects are, as such, designated by the funders and are usually time limited in duration and existence. The result of the specific criteria of these funding bodies is that certain groups are served for the duration of the grant, but this has not precluded the respondent from serving the broader community. Furthermore, the respondent has received significant levels of funding for the Community Education and Prevention Program for youth, women and service providers.

12Under cross-examination, the applicant agreed that the respondent does not exclude any target population from the any of the general services provided by it. Furthermore, although the applicant indicated in earlier email correspondence that the respondent excluded heterosexuals, there was no indication that heterosexuals were differentiated by the respondent in how they reached out to its membership. As noted above, the applicant indicated in his testimony that at all times he felt welcomed by the respondent.

Analysis

13Section 5. (1) of the Code states,

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

14The onus is on the applicant to establish a prima facie case of discrimination. In the context of alleged discrimination, the Supreme Court of Canada has described the threshold as “one which covers allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainants favour in the absence of an answer from the respondent”: Ontario Human Rights Commission v. Simpsons- Sears, 1985 CanLll 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.

15It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, and the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to an applicant. In many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions.

16The respondent contends that this matter is without merit, and lacks substance. I agree. There is no allegation contained within this Application or apparent from the evidence that could reasonably sustain a conclusion that the applicant has been discriminated against by the respondent.

17On the basis of the above, the applicant has not established a prima facie case of discrimination pursuant to the Code. Accordingly, this Application is dismissed.