E.M. v. Toronto Junior Canadiens Hockey Club, 2011 HRTO 1218

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.M. by his litigation guardian N.M. Applicant

-and-

Toronto Junior Canadiens Hockey Club, Harvey Shapiro, Peter Friedman, Rob Toffoli and Tyler Cragg Respondents

DECISION

Adjudicator: Kaye Joachim Date: June 24, 2011 Citation: 2011 HRTO 1218 Indexed as: E.M. v. Toronto Junior Canadiens Hockey Club

APPEARANCES BY

E.M., Applicant ) N.M., Representative Toronto Junior Canadiens Hockey Club, Harvey Shapiro, Peter Friedman, Rob Toffoli and Tyler Cragg, Respondents ) Gary Luftspring, Counsel

1This is an Application filed June 30, 2009. under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The original compliant was filed with the Ontario Human Rights Commission on February 13, 2006.

2The purpose of this Decision is to address the respondents' request to:

a) dismiss the Application at the outset on the basis that the another proceeding has appropriately dealt with the substance of the application, within the meaning of section 45.1 of the Code;

b) dismiss all or part of the Application on the basis of delay under section 34(1) of the Code;

c) dismiss all or part of the Application on the basis of abuse of process because the applicant ought to have raised the alleged discrimination before another proceeding; and in the alternative,

d) if the Application is not dismissed, that the applicant be bound by certain findings of fact determined in the other proceeding.

3A hearing was held on October 8, 2010. to hear the submissions of the parties on the above issues.

4The applicant self-identifies as African Canadian. He has been playing hockey at the "AAA" level for several years. He began playing with the Toronto Junior Canadiens Hockey club in 2003/04. He alleges that he was treated differently in that he was kept on the bench twice as long as other players (mostly white).

5In March of 2004, he asserts that he was instructed by the coach, Tyler Cragg, to deliberately get into a fight with a player on the other team during a game. He complied and both players received suspensions, the applicant for four games.

6The applicant's father alleges that he raised both the unequal playing time and the alleged instruction to fight with the coach and with Harvey Shapiro, President of the club, and Rob Toffoli. General Manger of the club, but nothing was done. Nonetheless, the applicant decided to stay with the team for the 2004/05 season.

7The applicant's father alleges that Mr. Cragg reprised against the applicant for raising the above concerns. He was given less ice time and benched more than other players for attracting game penalties.

8The applicant's father filed a written concern with the Greater Toronto Hockey League ("GTHL") in January 2005. The complaint filed with the GTHL referred to uneven ice time, the alleged fight instruction, and general unequal treatment. The Team suspended the applicant indefinitely on January 14, 2005, pending investigation of the allegations.

9The applicant's father filed an appeal of the suspension on January 19, 2005, with the GTHL.

10A hearing was scheduled and subsequently cancelled when the Team agreed to reinstate the applicant pending an investigation by a Ontario Hockey Federation ("OHF") Fact Finder hired by the GTHL.

11On March 1, 2005, the Investigator issued a Fact Finder's Report. The investigator had spoken to the applicant's father on February 22, 2005, to clarify his concerns. Those concerns were set out in the report and essentially reiterated the parent's concern with the instruction to fight, the additional penalty of sitting out if he attracted a penalty, different treatment from other players, and lack of equal playing time. The applicant's father had provided the Investigator the names of potential witnesses who would support his allegations. These witnesses were contacted, but their evidence was not supportive of the applicant's father's perceptions. The investigator concluded that there was no supportive evidence that the coach instructed the applicant to fight or treated the applicant differently than other players.

12The GTHL released the report on March 8, 2005, and advised it would not be taking any further action. The applicant alleges that the situation worsened after the release of the report and the coach offered him even less playing time. The applicant alleges that he experienced further harassment, discrimination and abuse during a hockey game played in Thunder Bay in April 2005.

13On April 13, 2005, the applicant applied to the GTHL Hearing Commission for a hearing to get a release for his son on the basis of mental and psychological abuse, discrimination, reckless endangerment, negligence, denial of equality of education opportunity and racism.

14A special Committee hearing of the GTHL was held on May 18, 2005, to address the applicant's request for release. The applicant, his father, the applicant's lawyer, and other witnesses participated.

15The Committee issued a decision and determined that the applicant would not be released. The Committee concluded based on the evidence provided by both sides at the hearing and the OHF fact finder's report that the applicant was not being treated unfairly or discriminated against, and therefore the player was not aggrieved and not entitled to a release.

16The applicant's request to appeal the decision of the Committee was denied on June 9, 2005, because the basis of the appeal did not meet the criteria for an appeal. The applicant had an opportunity to file a further appeal to Hockey Canada within seven days, but did not do so.

17In any event, the Team released the applicant from the team prior to September 2005 on a discretionary basis in light of the strained relations between the parties.

18On February 13, 2006, the applicant filed a complaint with the Commission alleging discrimination in the provision of services on the basis of race and colour. In addition to the above concerns, the applicant's father alleges that he was also reprised against by having his contract for strength and conditional coaching from August 2004 to April 2005 cancelled in January 2005, resulting in a loss of $1500.

Request to Dismiss Under Section 45.1

19Section 45.1 of the Code provides as follows:

a. 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.

20The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

21It 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 issue, 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.

Is the Previous Process a Proceeding within the Meaning of Section 45.1?

22In my view, the proceeding before the special Committee of the GTHL on May 18, 2005, was a proceeding within the meaning of section 45.1. The applicant, his father, the applicant's lawyer, and other witnesses participated. They were allowed to call viva voce evidence and to make submissions. A written decision was released.

Did the Previous Proceeding Appropriately Deal with the Substance of the Application?

23The substance of the proceeding before the Committee of the GTHL dealt with the same factual issues raised by the applicant in the present proceedings: unequal playing time, inappropriate urging to fight, the additional penalty of sitting out if he attracted a penalty, different treatment form other players. There was a general allegation of racism and discrimination arising from these alleged facts. The relief requested was different (to be released from the team), but the factual issues were substantially the same as in the present Application. The Committee heard the evidence and submissions and determined that the applicant had not established the alleged factual basis for obtaining a release, which decision implicitly concluded that the allegations of differential treatment were not made out.

24In my view, it would be an appropriate exercise of my discretion under section 45.1 to dismiss this Application on the basis that the internal process within the GTHL has appropriately dealt with the substance of the Application. Having regard to the fact that the events in question took place in 2006 and earlier, it would be more appropriate to allow the decision-maker at first instance, who heard the evidence in 2006, to address these issues than it would for the Tribunal to commence a hearing in 2011, many years after the event.

25Having regard to my determination under section 45.1, it is unnecessary to consider the alternative arguments.

26With respect to the father's allegation that he was reprised against, the father is not the applicant in this Application and I will not address the allegations of reprisal against him.

27The Application is dismissed.