Kahraman v. Zellers Inc., 2011 HRTO 1869

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Kahraman

Applicant

-and-

Zellers Inc., Canada Safeway, Metro Foods, Loblaw Companies Limited, Overwaitea, Sobey’s, Wal-Mart Canada, Federated Cooperatives, Costco

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: October 17, 2011

Citation: 2011 HRTO 1869

Indexed as: Kahraman v. Zellers Inc.

APPEARANCES:

Daniel Kahraman, Applicant ) self-represented

Zellers/Hudson’s Bay Company, Respondent ) Meghan Ferguson, counsel

Sobey’s, Respondent ) Maureen Quinlan, counsel

Costco, Respondent ) No one appearing

Loblaw Companies Limited, Respondent ) Mr. Grecco, counsel

Metro Ontario Inc., Respondent ) Judy Howard, counsel

Canada Safeway Limited, Respondent ) No one appearing

Wal-Mart Canada, Respondent ) Joel Thomas, counsel

Overwaitea, Respondent ) Richard Horn, counsel

Federated Cooperatives, Respondent ) No one appearing

1This is an Application filed on March 23, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondents discriminated against him in the provision of goods and services on the basis of creed.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on April 26, 2011, directing that a Summary Hearing take place. The Summary Hearing was held by telephone conference call on October 4, 2011.

DECISION

3For the reasons that follow I find that this matter has no reasonable prospect of success and the Application should be dismissed.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

5In Dabic v. Windsor Police Service, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Application to the Facts

6In his Application, the applicant alleges that the respondent grocery stores discriminate against him when he makes grocery purchases as he alleges that they collect “a religious tax known as the Kosher Tax”. He alleges that this is discrimination on the basis of creed as it requires him to pay a “religious tax for a religion [he does] not wish to support”. By way of remedy, he states that he seeks removal of the “Kosher Tax” from groceries and “compensation of monies collected”. He describes his creed as “Non religious”.

7At the summary hearing in this matter, in explaining how he feels the respondents have violated the Code, the applicant alleged that rabbinical orders, manufacturers and distributors collectively discriminate against one segment of the population, favouring another, by imposing, collecting and remitting a “Kosher Tax”. He submitted that the evidence of this is found on shelves in supermarkets. He submitted that the legality of a “Kosher Tax” is not the issue, but rather, the issue is the discriminatory nature of the “tax” itself.

8Among the respondents, counsel for the respondent Zellers/Hudson’s Bay Company spoke first and cited Dabic, supra, submitting that the applicant had failed to identify the required link between an event and a prohibited ground of discrimination under the Code. She also submitted that the Applicant had provided no evidence of the existence of a “Kosher Tax”. She submitted that the Application has no reasonable prospect of success and that it should be dismissed.

9Counsel for Sobey’s adopted the respondent submissions above.

10In addition to adopting the respondent submissions above, counsel for Metro Foods disputed the existence of a “Kosher Tax”. She submitted that government and an organization of charted accountants have determined that no tax credit can be claimed in relation to the purchase of Kosher foods.

11In addition to adopting the preceding respondent submissions, counsel for Wal-Mart submitted that the applicant has not provided any objective evidence to show how he has been treated differently under the Code.

12In addition to adopting the preceding respondent submissions, counsel for Overwaitea submitted that as it has no operations in Ontario, it is not possible for it to have discriminated against the applicant in Ontario.

13Counsel for Loblaw adopted the preceding respondent submissions.

14The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all disputes between parties.

15The CAD issued in this matter indicated that the question at the summary hearing is whether the Application should be dismissed on the basis that there is no reasonable prospect it will succeed. Further, the Applicant was directed to be prepared to make argument on “why the decisions of food manufacturers to obtain kosher certification could result in discrimination against him by grocery stores”.

16Other than stating that the evidence is on the store shelves, presumably by way of markings on certain food items indicating that the items are Kosher, the applicant has not indicated how he would propose to establish the existence of a “Kosher tax” which he alleges constitutes discrimination.

17Further, the applicant must be able to show that the respondents have treated him differently as compared to others based on his creed for his Application to be successful. He has not, however, indicated how, even if he were able to establish the existence of a “Kosher tax” (and for greater clarity, he has not established the existence of such a tax), he has suffered a disadvantage not suffered by others on the basis of his creed. He has not established how he has been treated differently than anyone else who buys their groceries from the respondents, because of his creed. Without such a link, his Application cannot succeed.

18I find that there is no reasonable prospect that the Application will succeed and it is dismissed.