Clarke v. Symes & Street, 2011 HRTO 2030

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlon Clarke

Applicant

-and-

Symes & Street

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: November 9, 2011

Citation: 2011 HRTO 2030

Indexed as: Clarke v. Symes & Street

APPEARANCES:

Marlon Clarke, Applicant ) On His Own Behalf

Symes & Street, Respondent ) Ben Millard, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2A summary hearing teleconference call was scheduled for this Application. It was to be heard along with four other unrelated Applications filed by the applicant.

3At the beginning of the conference call, the Tribunal proposed that each matter would be heard separately, given the lack of overlapping facts and the distinct nature of each Application, and suggested that the parties to each Application phone and connect to the conference call at specified times. The parties consented to proceeding in this way and the Tribunal heard submissions on each Application separately.

ANALYSIS AND DECISION

4Rule 19A.1 reads as follows:

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, 2010 HRTO 1994, at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

6The applicant alleges that he experienced discrimination in receipt of goods, services and facilities on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, sexual orientation, family status, marital status, age, receipt of public assistance and association with a person identified by a Code ground. He also alleges that he suffered reprisal. In fact, the only grounds of discrimination not alleged in the Application are sex, sexual solicitation or advances and record of offences.

7The applicant has filed extensive written materials along with his Application. Most of the documents are not relevant to the claim of discrimination being advanced or to the particular party named in the Application as the respondent.

8In his oral submissions, the applicant explained that his claim of discrimination against the law firm of Symes & Street arose out of one telephone consultation between the applicant and a lawyer at the firm on August 24, 2010. During that telephone conversation, which was the only contact between the parties, the applicant alleges that the lawyer was “rude and not helpful”. The lawyer told him it was too late to sue and did not refer him to another lawyer.

9When asked about the connection between the numerous grounds identified under the Code and the events described, the applicant suggests that the lawyer “might have known who he was” and that he “might have known he was calling from Seaton House”. He was unable to explain how the lawyer would have knowledge of either fact given that their only contact was by phone.

10Having reviewed the Application, the materials filed and having heard from the applicant, I find nothing in the allegations that suggest that the respondent law firm treated the applicant in a differential manner or that caused him disadvantage on the basis of the numerous grounds that he has identified.

11In my view, there is no reasonable prospect that the applicant will succeed in establishing a breach of the Code in respect of his allegations. Accordingly, the Application is dismissed.