HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lizhi Yu Applicant
-and-
Karen Longhurst Respondent
DECISION
Adjudicator: Geneviève Debané Date: November 24, 2011 Citation: 2011 HRTO 2127 Indexed as: Yu v. Longhurst
INTRODUCTION
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges discrimination in contracts and services on the basis of race, disability and reprisal. The respondent has filed a Response denying the allegations in the Application.
BACKGROUND
2This matter was originally scheduled for a hearing on the merits on October 4 and 5, 2011. On May 12, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) granting the respondent’s request for a summary hearing. The October 4 and 5, 2011 hearing on the merits was cancelled, and converted to a half-day summary hearing by teleconference to be held on October 4, 2011. Paragraphs 4 and 5 of the CAD state:
The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. Having reviewed the materials in this file, it appears that the applicant may be unable to prove such a link.
The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited.
3The Tribunal issued two Interim Decisions, 2011 HRTO 1650 and 2011 HRTO 1692, denying the applicant’s requests to adjourn the summary hearing.
4The summary hearing was held on October 4, 2011, and in accordance with the applicant’s request, the Tribunal obtained the services of a Mandarin interpreter during the conference call. In advance of the hearing both the applicant and the respondent filed materials with the Tribunal.
Background
5The following facts are not in dispute between the parties. An incorporated Company, Green City Canada Trading Inc. (“Green City”), entered, in or around October 15, 2007, into two contracts, a Commercial Lease Agreement (the “Lease Agreement”) and a Motor Fuel Supply Agreement (the “Supply Agreement”) (collectively “the Agreements”) with Cango Inc. to operate a gas station and convenience store on the leased premises. Green City, which has a number of investors, retained counsel to negotiate the Agreements. Neither Green City nor Cango Inc. is a party to the Application.
6The applicant Mr. Yu is the President and owner of Green City and, in his capacity as President, is signatory to the Lease Agreement and the Supply Agreement. Mr. Yu also signed a personal guarantee with respect to these two Agreements.
7The respondent Ms. Longhurst is employed with Cango Inc. as a sales and marketing manager. The respondent is not a signatory to the Lease Agreement or the Supply Agreement.
8There was no dispute that Green City was immediately in default of its financial obligation to Cango pursuant to the Supply Agreement and that five cheques were returned because of insufficient funds between October 30, 2007 and March 13, 2008. Further, Green City did not comply with maintaining the leased premises in accordance with the Lease Agreement.
9On August 23, 2008, the applicant was involved in a car accident.
10On February 13, 2009, Cango Inc. provided Green City with a letter putting it on notice that Green City continued to be in breach of the Agreements and financial obligations, which included “expired TSSA Licence (sic), no heat, no hot water, lights turned off, improper snow removal, spill containments not cleaned out, vapour recovery connections/fill area covered with ice, pump maintenance and customer service.” The letter warned that these breaches needed to be rectified by February 18, 2009.
11On February 16, 2009, the applicant responded on behalf of Green City that he would correct the deficiencies, by (amongst other things) turning on the heat and the lights, contacting a plumber to fix the hot water, and keeping a closer eye on his contractor to make sure the snow was removed on a timely basis.
12The applicant also writes in this letter, “I have to state here that the business in my store not doing well in recent months is not mainly because of the problems you pointed in your notice, it is because of my terrible injury caused by a traffic accident, which made me very hard to perform fully my clerk and management duties in the store, and also because of the bad situation in the world, the not-competitive price from Cango Inc., the not-on-time oil delivery, and the cold/snow weather (sic).”
13On May 29, 2009, as Green City was still in default of its obligation, Cango Inc. gave 60 days notice of termination of the Lease Agreement and the Supply Agreement.
14In or around July 17, 2009, the Agreements were eventually terminated, assigned to a third party and Cango Inc. charged Green City a $5,000 fee for the transfer.
15The applicant alleges a number of things in the Application, including that the respondent failed to accommodate his disability and that the Agreements were illegally terminated. The applicant also states that he was treated in a discriminatory manner with respect to contract because of his race.
16During the summary hearing conference call the applicant stated that he had a number of employees that worked at the gas station and convenience store, which operated 7 days a week from 7 a.m. to 9 p.m. The applicant worked approximately 4 to 6 hours per day at the premises. He stated that the only time that the gas station and convenience store were closed between October 2007 and July 2009 was when Cango Inc. failed to supply gasoline on a timely basis. The applicant stated that the major reason why Green City was in default of its obligations was because Cango failed to guarantee a fixed price on the sale of the gasoline and failed to provide gasoline on a timely basis. Further, the applicant took issue with the fact that he was charged the $5,000 transfer fee. The applicant asserted that this was differential treatment because of his race and that he is a newcomer to Canada; however, he did not present any evidence nor suggest any evidence that he reasonably has in support of this claim.
17When I asked the applicant about how the respondent failed to accommodate his alleged disability, the applicant stated that the roof needed to be repaired. When I asked what prevented him from hiring someone to fix the roof, he stated that contractually it was Cango Inc.’s responsibility. Though I repeatedly asked the applicant how Cango or the respondent should have accommodated his disability, this was the only example he could give and indeed he admitted that he never specifically asked the respondent for any accommodation prior to the termination of the Agreements. The applicant also indicated that he had hired employees to assist him after his accident.
18When I asked the applicant to explain the reason why he did not cure the defaults with respect to the Agreements, the applicant stated that since Cango Inc. had been in default of its own obligation (for example, failure to supply gasoline in a timely fashion) this relieved Green City of its obligations to comply with the Agreements.
Legal Analysis
19The decision in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9 sets out the test to be applied at 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.
20Having reviewed the submissions of the parties, the prospective evidence and case law, I find that the applicant has no reasonable prospect of being successful in this Application for the reasons that follow.
21Having examined the documents filed by the parties, there is a clear arm’s-length commercial relationship between Cango Inc. and Green City. As president of Green City the applicant had the complete discretion, subject to some standard commercial terms, to operate the gasoline station and convenience store. Though there were periodic visits by representatives of Cango Inc., the applicant did not need permission to hire/fire employees or make decisions with respect to the day-to-day operations of the business. The applicant had the complete authority to determine and implement whatever measures were necessary to accommodate any disability-related accommodation, including his own. In essence, the applicant’s employer was Green City and he was in complete control of Green City.
22With respect to the applicant’s allegations that he was not accommodated by the respondent, I find that the applicant has failed to establish that he required any accommodation. The issues raised by the applicant in the conference call and his submissions with respect to accommodation have to do with Cango Inc.’s alleged failure to comply with the terms of the Agreements. Nothing prevented the applicant, for example, from fixing the roof and suing Cango Inc. for the repayment of this expense. This is not an accommodation issue or a Code-related issue, but is in essence a contractual dispute between Cango Inc. and Green City, who are not parties to this Application.
23To the extent that the applicant takes the position that the contract was illegally terminated by Cango Inc. because of the applicant’s accident, I find that this is not supported by the facts. I note that the applicant had the power as President to delegate any decision-making authority or supervisory duties to any employee to ensure that Green City met its contractual obligations. As stated above, it is not in dispute that Green City was in breach of its contractual obligations within one month of entering into the Agreements and over nine months before the applicant’s accident. Further, the applicant advised during the conference call that the reason why Green City was not a successful business was because of Cango’s alleged failure to supply gasoline on a timely basis. He also admitted that Green City purposefully did not comply with its contractual obligations because Cango Inc. was not living up to its end of the bargain. Once again, these are not Code-related issues, but is at the heart of the contractual dispute between two non-parties, Cango Inc. and Green City.
24The applicant did not point to any proposed any evidence that would support his claim that he was discriminated against on the basis of his race and/or because he was a newcomer, including that he was subjected to more onerous contractual terms by Cango Inc.
25I note that during the call both parties focused their submissions on the relationship between the applicant, Cango Inc. and Green City. I frequently had to remind the applicant that the respondent was in fact Ms. Longhurst. There are simply no allegations made against her in the Application that would reasonably lead to a finding that she breached the Code, either personally or in her capacity as an employee of Cango Inc. The applicant alleges that Ms. Longhurst did not immediately approve of the transferee selected by the applicant (though eventually Cango did accept the transferee), that she charged a $5,000 fee for the transfer and that she did not permit Green City to have an extension of time to transfer its business. All of these relate to the commercial dispute between Green City and Cango Inc., and none would reasonably support a finding that the Code has been breached.
26Though the applicant feels that he has been unfairly treated by the respondent and Cango Inc., there is no reasonable prospect that he will be able to establish a breach of his rights under the Code by either Cango Inc. and/or Ms. Longhurst.
27Accordingly, the Application is dismissed.
Dated at Toronto, this 24th day of November, 2011.
“Signed by”
Geneviève Debané
Vice-chair