Dai v. Presbyterian Church of Canada, 2010 HRTO 883

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peikang Dai

Applicant

-and-

The Presbytery of East Toronto, Presbyterian Church of Canada

Respondent

INTERIM DECISION

Adjudicator: Judith Hinchman

Date: April 23, 2010

Citation: 2010 HRTO 883

Indexed as: Dai v. Presbyterian Church of Canada

APPEARANCES BY

Peikang Dai, Applicant ) On his own behalf

The Presbytery of East Toronto, ) David Elenbaas, Counsel Presbyterian Church of Canada, Respondent )

INTRODUCTION

1This is an Application received March 27, 2009, under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights complaint was filed with the Ontario Human Rights Commission in January 2007 (the "Complaint") and abandoned upon filing this Application with the Tribunal. A hearing on this matter was conducted on December 10, 2009 (the "Hearing").

2The applicant alleges that the respondents discriminated against him in employment and vocational association on the basis of race, colour, and ethnic origin; that through comments made by certain members of the corporate respondent they harassed him in employment on the basis of race, colour, and ethnic origin; and that they reprised against him for pursuing Code-related rights.

3At the Hearing, the applicant presented his evidence in support of the Application. At the conclusion of his evidence, the respondents requested that the Tribunal dismiss the Application on the basis that the applicant had not established a prima facie case of discrimination to which they must respond.

4The respondents also requested that the Application be dismissed as a matter already appropriately dealt with in another proceeding pursuant to s. 45.1 of the Code and, finally, requested that the personal respondent be removed as a party.

5This Interim Decision deals with the respondents' preliminary requests and provides Case Assessment Direction.

6The respondents objected to much of the evidence that the applicant has filed as well as to his proposed witnesses. By Case Assessment Direction dated December 2, 2009 (the "CAD"), I listed the documents filed by the applicant that did not appear to be arguably relevant because they relate to events after the alleged discriminatory events occurred. At the Hearing the applicant was given an opportunity to make submissions regarding the relevance of the documents listed in the CAD as well as to indicate which documents in several other bound volumes were arguably relevant to his Application. I ruled that none of the documents listed in the CAD were relevant but admitted some of the documents in the other bound volumes. Any admitted documents are referenced in this Interim Decision.

7With respect to the applicant's list of 37 proposed witnesses, at the Hearing the applicant was given the opportunity to call any of those witnesses who would be testifying about his allegations. He indicated that none of them had any knowledge about the allegations and thus he did not call any witnesses.

BACKGROUND

8The corporate respondent, the Presbytery of East Toronto, Presbyterian Church in Canada (the "Presbytery"), is a Protestant Church. The personal respondent Reverend Jim Biggs is an ordained minister and at the relevant time was the Clerk of the Presbytery. Also at the relevant time the applicant was an ordained minister on the Appendix to the Roll of the Presbytery without a pastoral charge.

9The applicant approached the Missions Committee of the Presbytery (the "Missions Committee") in February 2004 to propose the idea that a Mandarin-speaking ministry be developed. For the following 15 months the Missions Committee met with the applicant at least monthly to work on his idea and prepare it for approval by the Presbytery. This included budget planning, logistics, and strategizing the overall implementation.

10Without the approval of the Presbytery, in November 2004 the applicant and his spouse began a mainland Chinese Presbyterian Fellowship (the "Fellowship") for immigrants from mainland China. Knox Presbyterian Church provided space and financial support to the applicant and his spouse for their Fellowship work.

11In February 2005 the applicant approached the Missions Committee with materials comprising his proposal that the Fellowship be officially recognized and formally constituted as a new congregation of the Presbyterian Church in Canada (the "Proposal").

12On May 3, 2005, the Missions Committee formally recommended that the Presbytery affirm the Proposal. Although the Presbytery affirmed the vision, it deferred the matter to a June meeting, requesting additional details. At this time, because the Proposal was not yet accepted, the applicant was only receiving the financial support offered by Knox Church for his Fellowship work. Consequently, the applicant expressed concern about his finances and inquired about additional financial support. He was referred to the Pastoral Care Committee and met with them shortly thereafter. He met with this committee more than once.

13On May 23, 2005, the applicant submitted a formal request to the Presbytery to investigate his claims that in his dealings with the Presbytery regarding his Proposal, he was subjected to racial harassment and discrimination. This complaint was referred to the Synod of Northeastern Central Ontario and Bermuda (the "Synod"). In accordance with Presbyterian Church rules, all actions of the Presbytery in respect of the Proposal were suspended pending investigation and a decision of the Synod.

14The Synod found that the Presbytery's handling of the Proposal was not discriminatory and that there was no unusual delay in respect of the Proposal compared to other similar proposals.

15The applicant appealed the Synod decision to the general assembly and that request was denied. After the Complaint was filed, the Presbytery re-commenced the processing of the Proposal in early 2007; on February 5, 2008 it approved the motion to establish a Mandarin Fellowship Mission.

16In his Complaint, the applicant's first allegation is that for discriminatory reasons the Presbytery delayed consideration of his Proposal.

17Specifically he alleges the discriminatory acts include that in April 2004 the Presbytery requested that he solicit letters of support for his idea. He alleges that he submitted five letters. Furthermore he alleges that it was not until May 2004 that for the first time his submissions regarding his Proposal were recorded in the Presbytery docket and minutes. Next, the applicant alleges that in December 2004 he submitted additional documents in support of his Proposal but that most of these documents have gone missing. Next he alleges that personal respondent Reverend Biggs did not record the fact that those documents were submitted. The applicant also alleges that the Presbytery discriminated against him when it adjourned its consideration of the Proposal during the Synod investigation and hearing.

18The applicant's second allegation is that in January 2005 he offered his service to the Presbytery to be a Presbyterian minister and he received no response and that this amounted to discrimination under the Code.

19The applicant's third allegation is that when he met with the Pastoral Care Committee beginning in the spring of 2005, the committee was an all-white group whose attitude he found hard to accept, and that the conduct of the Committee members amounted to harassment on the basis of race, colour, and ethnic origin.

20Fourth, the applicant alleges that the respondents have reprised against him.

REQUEST TO REMOVE THE PERSONAL RESPONDENT

21Pursuant to Rule 4.3(b) of the Rules of Procedure for Transitional Applications, the Tribunal has the power to "add or remove a party." In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal suggested that the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

22In Persaud, the Tribunal also suggested that "one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just, and expeditious resolution of the merits of the complaint."

23The applicant alleges that Reverand Jim Biggs did not record in the Presbytery records documents that the applicant submitted in support of his Proposal. At the Hearing, the applicant submitted that by recording or not recording documents the personal respondent "had the power to decide what would be discussed" at Presbytery meetings. And he alleges this contributed to the Presbytery's discriminatory consideration of his Proposal.

24The respondents' position is that applying the factors in Persaud, it is appropriate to remove the personal respondent. I agree. First, the corporate respondent is also alleged to be liable for the allegations surrounding the Proposal, which include the handling of documents the applicant claims he submitted to the Presbytery. Second, in performing the Clerk duties, the personal respondent was acting in an administrative capacity in the course of his duties to the corporate respondent. No issue has been raised questioning the corporate respondent's vicarious liability for any actions of the personal respondent in carrying out these administrative Clerk duties. Third, no question has been raised about the corporate respondent's ability to respond to or remedy the alleged Code infringements. Fourth, the alleged conduct is not a central issue in this case. Finally, I can find no prejudice to the applicant in that, if successful, the corporate respondent would be responsible for any remedies.

25Thus after careful consideration of the Persaud factors, I do not believe it is necessary to involve this person as a party in order to have a fair, just, and expeditious resolution of the merits of the Application. As there is no compelling reason to continue the proceedings as against Reverand Jim Biggs, I find it is appropriate to remove him as a personal respondent and the style of cause will be amended accordingly.

SECTION 45.1

26Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

27It is helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application. With regard to the second part, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was "appropriately dealt with" in the other proceeding. See Robinson v. Spanish (Town), 2009 HRTO 1484.

28In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some of the principles that apply to the interpretation of s. 45.1, which include:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;

• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that was reached in the other forum.

29Applying Campbell, supra, the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, stated that other relevant factors are the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and the safeguards available to the parties in the other administrative proceeding.

30Was there a proceeding as that term is used in the Code? At the relevant time, the Church had no procedure for dealing with claims of discrimination or harassment. Therefore the Synod appointed a special commission to conduct an investigation. The rules governing the Synod investigation are found in the Presbyterian Church of Canada Book of Forms.

31The Synod met with individuals to answer questions regarding the applicant's complaints. The applicant was not present at all of these sessions and so did not observe a good portion of the investigation or have the opportunity to ask these individuals questions. There was no statutory scheme under which the investigation was conducted and procedural safeguards available to parties in certain administrative settings under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 were not evidently available to the applicant or the others questioned by the special commission.

32I am not persuaded that the investigation into the applicant's complaints satisfies the meaning of a proceeding pursuant to Code s. 45.1. Section 45.1 is a discretionary power and I do not find it appropriate to exercise that discretion in this case.

MOTION TO DISMISS FOR FAILURE TO ESTABLISH PRIMA FACIE CASE

33It is well established in human rights law that the onus is on an applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.), at para. 28, a prima facie case was described as 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.

34In Potvin v. Hydro One Networks, 2009 HRTO 2123, the Tribunal reviewed recent cases where it considered the issue of whether to consider if an applicant has presented a prima facie case of discrimination requiring a response from the respondent at various stages in a proceeding including: at the outset as a preliminary matter before any evidence is heard, after hearing only the applicant's evidence, or after hearing from all parties. See e.g.; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, Jagait v. IN TECH Risk Management, 2009 HRTO 779.

35I am satisfied, after hearing the evidence of the applicant and considering the allegations in the Complaint, that for most of his allegations he has not established an arguable case of discrimination based on race, colour, ethnic origin, or, on some of his allegations, of reprisal.

36In order to find discrimination, the Tribunal must be satisfied both that the applicant experienced adverse treatment in relation to others, and that it was based on a ground enumerated in the Code such as in this case race, colour, ethnic origin, and reprisal. See Potvin, supra also discussing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 1989 CanLII 2. Although the threshold for establishing a prima facie case of discrimination is not high, where the applicant has failed to do so, the Tribunal stated in Jagait, supra, "it is neither legally correct nor, …fair, just, and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions." I agree with this approach.

THE APPLICANT'S EVIDENCE

The Missions Committee Proposal

37The applicant's allegations and proposed evidence regarding the discriminatory manner in which his Proposal was dealt with can be summarized as follows:

1. The Presbytery and the Missions Committee specifically delayed considering his Proposal because of his race, colour, and ethnic origin.

2. He was not allowed to speak at Presbytery meetings in support of his Proposal.

3. Documents that he provided in support of his Proposal were not recorded and were lost.

38At the Hearing, under cross-examination the applicant was questioned about his allegations regarding the treatment of his Proposal and given the opportunity to explain how his proposal was treated differently than similar proposals put forth by the Mission Committee. The applicant claimed that an Arabic ministry that was proposed in 2005 was approved in 2006. He was unable to point to any other similar proposals that had been dealt with more quickly than his Proposal.

39With respect to the specific treatment alleged, the applicant admitted that the Missions Committee had worked with him to develop his Proposal at least until December 2004. When questioned at the Hearing he could not remember whether or not the Missions Committee continued working on the Proposal between December 2004 and April 2005, although he admitted that Mission Committee minutes dated January 26, 2005 reflect discussion of the Proposal. At a meeting in April he was permitted to speak, although not at the point in the meeting that he would have preferred. He was able to speak during the Announcements period that closed each meeting. He wanted to be on the regular agenda. He alleges that matters discussed during Announcements are not treated as real church business. He also agreed that on May 3, 2005, when the Missions Committee recommended his Proposal to the Presbytery, he was again allowed to speak in support of the Proposal.

40With respect to the missing documents and failure to record these, he stated that he expected any materials that he submitted to the Presbytery Clerk would be reflected in the Clerk's monthly submissions to the Presbytery. When that did not happen he assumed the documents were lost. He also expected to see a record of his continued requests in writing that the Proposal be accepted. Ultimately he admitted that the Missions Committee had received the bulk of the statistical research he had compiled to support the need for his proposed new ministry as well as his initial requests for the Proposal and that perhaps only additional demographic statistics could not be accounted for.

41Finally the applicant alleges that the Presbytery ought not to have adjourned its work on his Proposal during the period that the Synod was investigating and deciding his claims against the Presbytery because his claims were merely in the nature of an inquiry.

42For the reasons below, the allegations in respect of the Missions Committee Proposal are dismissed as not establishing a prima facie case of discrimination under the Code.

Offer of Service to Presbytery in January 2005

43The applicant alleges, "in January 2005 [he] offered his service, as the only mainland Chinese minister, in this multiracial city with the largest mainland Chinese immigrant population," and that he "received no response from the Presbytery." The applicant did not address this allegation further when giving his evidence at the Hearing.

44To the extent that this allegation can be viewed as separate and apart from the allegations in relation to the Missions Committee Proposal, and for the reasons set out below, this allegation is dismissed as not establishing a prima facie case of discrimination under the Code.

Comments made by the Pastoral Care Committee

45It is not disputed that in May 2005, when the Presbytery deferred consideration of the applicant's Proposal for another month, the applicant asked for pastoral care to supplement his income. If his Proposal had been accepted at that point, he would have earned more income from an appointment with the new ministry.

46In his Complaint the applicant alleges that he met with "all-white" Pastoral Committee members whose attitude was "hard to accept." He provided no further particulars until several weeks before the Hearing when included in documents submitted he listed comments that he wrote he had "heard" at the Presbytery since 2003. These statements were not attributed to any particular persons, nor were the places or times noted. It is noted that these statements were also provided to the Synod during its investigation, also not attributed to any persons.

47After giving his evidence at the Hearing, in cross-examination the applicant identified the persons whom he alleges made the comments and when and where they occurred.

48He admitted that none of the comments explicitly refer to his race or the other grounds of discrimination he alleges. He testified, however, that he perceived them to be racially motivated. The applicant stated that the alleged comments were condescending in tone and made him feel demeaned.

49The applicant also stated that two comments attributed to Mission's Committee member Sandra Denyson were not in his opinion discriminatory as she was trying to help him and was very kind to him. Those comments thus are not included below.

50For completeness the alleged discriminatory comments are as follows, grouped together as per the applicant's recollection of who uttered the comments. The comments are alleged to have been made over the course of several Pastoral Care Committee meetings.

51Comments allegedly made by Reverend Cameron Brett:

1. The Cooke's Fund only helps crying babies; If Presbytery of East Toronto is not calling you, maybe God is calling you somewhere else; I hope that you are not starting this ministry to receive a stipend.

2. You are not a team player; You need to have a worshipping community before we can even start thinking about supporting your work; No one has asked you to do this work.

3. If you hadn't complained to the Presbytery of East Toronto about your exclusion from Knox Session in 1998, it would have been much easier for us to help you now.

4. If you hadn't accused Presbytery of East Toronto of racism, we might have made the decision to support you financially.

5. This is not a sustainable ministry; No one has asked you to start this ministry. It is all your initiative; It takes at least two years to start a new project in this Presbytery.

6. If you take your petition to the General Assembly, it will take longer to solve this issue. Are you ready for it?

Comments allegedly made by Reverend Charlotte Stuart:

7. Why don't you try to seek a call to pastor an English congregation? What do you mean by ministry in the inner city?

8. Do you have to do Christian work on Spadina Avenue?

9. Have you tried to find accommodation for your family in a homeless shelter like Evangel Hall?

10. What do you mean by inner-city work?

Comment allegedly made by Reverend Stephen Kendall:

11. If Presbytery of East Toronto is not calling you why not go to find a job to deliver pizza?

Comments allegedly made by Kevin Livingston:

12. How many ethnic churches do you want us to have in this Presbytery?

13. It is your own fault.

Comment allegedly made by Reverend Richard Fee:

14. Don't we already have work among refugees and immigrants in Toronto?

52The other alleged comments post-date the filing of the Complaint. These are considered below in Reprisal.

53While I make no findings with respect to these alleged comments, taken on their face, and for the reasons below, I find that they are sufficient to establish a prima facie case of discrimination or harassment under the Code and to require a response.

Reprisal

54The applicant's allegations with respect to reprisal appear to be that the Presbytery adjourned dealing with his proposal until after the Synod decision was issued. The alleged racial comments that were made after the filing of the Complaint were allegedly made in a conversation during 2007 between the applicant and Reverend Kevin Livingston. The applicant testified that after he said "I am tired of seeing white," Reverend Livingston said "your remark is racist." Three other remarks alleged to have been made in 2007 after the Complaint was filed are: "Don't let this guy speak; This guy is a mental case; and This guy has been a thorn in the flesh for so many years." The applicant did not indicate where these comments were made or who made them. For the reasons below, I find that these allegations are insufficient to establish a prima facie case of reprisal under the Code.

55However, on their face, at least some of the comments allegedly made and described above (see, for example, comments #3, #4 and #6) raise the question of whether the applicant was treated adversely by the Pastoral Care Committee because he was pursuing a complaint of racial discrimination through internal church mechanisms. While I make no findings at this time, for the reasons below, I find these comments are sufficient to establish a prima facie case of reprisal and to require a response.

ANALYSIS AND DECISION

Missions Committee Proposal

56The applicant's allegations and evidence at the Hearing do not satisfy me that his Proposal was treated differently in relation to other proposals for new missions. If anything after hearing the applicant's evidence it appears that the Mission Committee of the Presbytery worked on his Proposal to prepare it for recommendation to the Presbytery in the same manner and on a similar timeline as it would any other proposal.

57The applicant has not shown that when the Presbytery adjourned its consideration of the Proposal during the Synod investigation, as per its rules, this was differential treatment either.

58I find that there was no differential treatment in the handling of the applicant's Proposal that requires an analysis of whether or not such treatment was based on the alleged discriminatory grounds.

January 2005 Offer of Service to Presbytery

59At the Hearing the applicant provided no particulars to support his allegation that he offered to serve as a minister and received no response and he provided no evidence at all in support of his general allegation. He did not, for example, attempt to explain whether or how this offer of assistance was separate and apart from the ongoing consideration of his mission proposal, whether there was any general procedure in place for the consideration of unsolicited offers of ministerial assistance, or whether he was or even believed that he was treated differently than anyone else who might make an unsolicited general offer to serve as a minister.

60Although the threshold for establishing a prima facie case is not high, the applicant has not provided sufficient detail to establish that even if this allegation is true it is a complete and sufficient claim to justify a finding of discrimination in his favour in the absence of an answer from the respondent. The mere fact that the applicant identifies as having a mainland Chinese background and made an unsolicited offer of service as a Minister to which he received no response is insufficient on its face to establish a prima facie case of discrimination (see Jagait, supra).

Alleged Comments by Members of the Pastoral Care Committee

61The applicant alleges that the comments enumerated above amount to harassment on the basis of race. Harassment is defined in s. 10 of the Code to mean "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome." Although the applicant appeared to frame his allegations relating to his treatment by the Pastoral Care Committee as "harassment" on the basis of race, it was clear from the totality of his evidence and submissions that he was more generally alleging that his race or ethnic origin were a factor in his treatment by members of the Pastoral Care Committee.

62The context at the time was that the applicant was feeling financial stress and was frustrated that, because the Proposal had not yet been formally approved, he and his family were only receiving the financial support provided by Knox Church. The Pastoral Care Committee had the authority to implement solutions to alleviate his situation. And it offered to and did meet several times with the applicant to counsel him on how he might find additional income.

63The applicant alleges that their attitude when meeting with him was "hard to accept" and that in particular they made several comments that were racially motivated. The applicant has testified that the alleged comments do not specifically reference his race, colour, or ethnic origin. Because the comments do not directly refer to a Code-protected ground, the applicant urges that I infer that taken together these nonetheless amount to racial harassment.

64As noted, the threshold for establishing a prima facie case of discrimination is not high and often a respondent will have more knowledge of certain facts or possess evidence of discrimination. See Jagait, supra. Although I make no finding now, as to whether all of the comments taken together, or some on their own may establish either harassment or discriminatory treatment under the Code, I find that the allegations relating to the alleged comments by various members of the Pastoral Care Committee are sufficient to establish a potential claim under the Code and to require a response.

Reprisal

65Section 8 of the Code provides that:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

66Reprisal is a right established under the Code that does not rely on establishing a particular act of discrimination and as such it stands on its own to encourage pursuit of underlying Code rights without fear of recrimination for doing so. See Abouchar v. Toronto (Metro) School Board (No. 3) (1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411. To prove the ground of reprisal an applicant must establish that a respondent intended to reprise. Intent may be inferred from the facts and is a matter of credibility. Jones v. Amway of Canada Ltd. [2002] O.J. No. 1504 (Ont. Div. Ct.).

67While the applicant has not alleged that the respondents knew or should have known that he would pursue his Code rights by filing his Complaint under the Code in January 2007, he has alleged that the Pastoral Care Committee knew he was pursuing an internal complaint of racial discrimination and either reprised or threatened to reprise against him by treating his request for support differentially because he was pursuing that complaint. See Jones v. Amway of Canada Ltd., supra. The allegations in respect of the alleged comments made by members of the Pastoral Care Committee are sufficient to require a response.

68However, with respect to the three comments alleged to have occurred after he filed his Complaint, the applicant has not identified who made the three comments or where and when these were made. On this basis I do not find that these three comments amount to allegations sufficient to support a claim of reprisal under the Code.

69In summary, I have found that the personal respondent may be removed from the Application. I have also found that it is not appropriate to exercise my discretion under section 45.1 to dismiss all or part of this Application. With respect to the allegations in the Application, I find that the evidence of the applicant is not complete and sufficient to justify a finding in his favor for the allegations regarding the handling and consideration of his Proposal or his offer to serve as a minister in January 2005.

70Thus for those allegations the applicant's evidence does not establish a prima facie case of discrimination under the Code. I am also satisfied that this is a case where it is fair to arrive at this assessment in the absence of any evidence from the respondent. Those portions of the Application are thus dismissed.

71On the other hand, with respect to the comments listed in paragraph 51 of this Decision allegedly made by Reverends Brett, Stuart, Kendall, Livingston, and Fee, I am not satisfied that the applicant has failed to make out a prima facie case of discrimination or of reprisal. I would find it helpful and fair to hear a response to these allegations from the respondent. For that purpose the Registrar-Transition shall schedule a half-day oral hearing. The parties may make submissions at the outset of the hearing concerning a proposed approach for proceeding with those matters that remain.

ORDER

1. The personal respondent is removed from this Application and the style of cause is amended accordingly.

2. The allegations regarding the handling and consideration of the Proposal, and the applicant's alleged offer to serve as a minister in January 2005, are dismissed.

3. The respondent shall provide a response to the remaining allegations concerning comments made by the Pastoral Care Committee at a half-day oral hearing to be scheduled and shall file the appropriate documents as per Rule 18 of the Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code.