Alexandre Bystrov v. The Algonquin College of Applied Arts and Technology, 2011 HRTO 2276

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandre Bystrov

Applicant

-and-

The Algonquin College of Applied Arts and Technology

Respondent

DECISION

Adjudicator: Alison Renton

Date: December 20, 2011

Citation: 2011 HRTO 2276

Indexed as: Bystrov v. Algonquin College of Applied Arts and Technology

APPEARANCES

Alexandre Bystrov, Applicant ) Self-represented )

The Algonquin College of Applied Arts ) Chris Rutherford, Counsel and Technology, Respondent )

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 13, 2010, alleging discrimination on the grounds of place of origin and ethnic origin in the social area of goods, services and facilities, and specifically education.

2The applicant alleges that an article entitled “From Russia, with love” (“the Article”), which appeared in the winter 2010 edition of “Glue”, a student magazine published by the respondent’s Faculty of Art, Media and Design, constitutes discrimination and harassment towards him under the Code. The article, he alleges, contains some false statements and creates a negative image of the Russian nation. The applicant self identifies as being from Russia.

3The respondent filed a Response and a Request for Summary Hearing further to Rule 19A of the Tribunal’s Rules of Procedure (“the Request”) and filed supporting materials. The applicant did not file a Reply, but did file a Response to a Request for an Order During Proceedings (“Response to RFOP”) and supporting materials. A Case Assessment Direction (“CAD”) was issued by the Tribunal, dated May 13, 2011, granting the respondent’s Request and advising that a half-day teleconference hearing would be scheduled by the Tribunal to determine whether the Application should be dismissed on the basis that it has no reasonable prospect of success and/or is outside the Tribunal’s jurisdiction.

4A teleconference call hearing was held on November 8, 2011 (“the hearing”) and both parties participated. The Tribunal heard submissions from the respondent as to why the Application should be dismissed and then heard submissions from the applicant as to why the Application should not be dismissed. The respondent had an opportunity for reply submissions.

The Respondent’s Submissions

5The respondent notes that the applicant marked off the social area of goods, services and facilities as the area in which he alleges harassment and discrimination occurred. The respondent submits that the applicant’s allegations of harassment cannot succeed as only the social areas of accommodation (housing), employment and sexual harassment in accommodation (housing) and employment are social areas in which harassment can be determined. The Code, the respondent submits, does not allow for harassment in goods, services and facilities.

6While the Code does allow for discrimination in goods, service and facilities, the respondent submits that the applicant does not meet the definition of discrimination, as developed by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2, and as such the Application ought to be dismissed.

7The article, the respondent submits, is an article in a student magazine and written by a fellow student and as such is not a provision of goods, services or facilities by the respondent. The provision of content of a newspaper, or magazine article, is not a service within the meaning of the Code. Further, the article expresses the personal opinions of the author and falls within section 13(2) of the Code, which allows for freedom of expression.

8In response to questions from the Tribunal about whether the respondent followed its own complaints process under its harassment and discrimination policy, the respondent stated that it could not speak for its ombudsperson, with whom it has an arm’s length relationship, but that it was not required to follow the policy given that the subject matter of the complaint was about the article. It submits that it did follow the policy, although the applicant may disagree with the conclusions flowing from that investigation.

The Applicant’s Submissions

9The applicant submits that unlike the Ottawa Sun or the Toronto Star, the magazine is not an independent magazine or newspaper. Instead, it is part of an educational environment of the respondent and is a communication tool between students. The respondent owns, operates and prints the magazine, and uses it for teaching students. The respondent also distributes the magazine inside its educational environment and as such the magazine belongs to and is part of the respondent. While the applicant does not have a service relationship with the magazine, he does with the respondent and he expects to be free from racial discrimination in receiving this service from the respondent.

10The article, the applicant submits, contains unwelcome and stereotypical comments about Russians which constitute racial harassment and discrimination towards him, as he self-identifies as being from Russia. Racial harassment, he submits, is a form of racial discrimination and can lead to a poisoned environment, such as what he has alleged in his Application. Separation of harassment from discrimination is legally incorrect, he submits. The applicant points out that the respondent’s own policies allow for a campus which is free from discrimination and harassment, as does the Code, and he submitted policies from the Ontario Human Rights Commission, Canadian Human Rights Act, Canadian Charter of Rights and Freedoms in further support of his position.

11With respect to the respondent’s position that the article constitutes a personal opinion which amounts to freedom of speech permitted by section 13(2) of the Code, the applicant submits that this is legally incorrect. He submits that there is no absolute freedom of expression, but rather limited freedom of expression, and in any event freedom of expression is trumped or limited by the anti-harassment and discrimination provisions found in the Code, the Universal Declaration of Human Rights and other such statutes.

12The respondent, the applicant submits, failed to follow its own procedure with respect to complaints when the editor of the magazine and the ombudsperson failed to respond to his complaints and when the executive dean and vice-president of academics failed to conduct an investigation or take his issues seriously.

The Content of the Article

13The article in question reads as follows:

Canadians! “It is all about food, eh?”

That was the first question I asked after three days spent in Canada, although I only figured out the meaning of the sound “eh” later on. It seems like a very important part of Canadian vocabulary, apparently used in order to confirm whether the listener heard what was asked about.

But, really, why are Canadians so mental about food?

When I first came to Canada from Russia about a year ago, the Canadian family I lived with made me dinner.

“Wow, that’s a really big plate,” I said, eyeing the mound of roast beef and mashed potatoes.

But later I would learn the Canadian food mentality: the bigger the plate, the more pleasurable the meal, especially if it’s full of poutine.

The next day I had my first class in Canada. That day, one of my classmates bought breakfast from the cafeteria, including eggs, sausages, bacon, two pieces of toast and of course a pile of hashbrowns. In Russia this would be the size of a dinner. Never before had I realized that mornings could necessitate that kind of calorie intake.

Unlike in Russia, where I was once kicked out of the classroom for opening a chocolate bar during class, the teacher here in Canada absolutely did not mind me eating in class.

When lunchtime rolled around and that same classmate had a piece of pizza with a can of Code, I realized how equipped Canada is with food.

People from here would definitely be starving at school cafeterias in Russia, having a bowl of soup and cutlet with mashed potatoes – the only food on the menu.

In Russia’s rural areas, many people still don’t even know what vending machines are or how they work. I doubt they have ever even heard of McDonald’s either. The fact is that even one of the biggest cities in Russia, Vladivostok, which has the same number of people as Ottawa, still does not have McDonald’s. You’d probably think, are you guys crazy?

After a week of full-time work at minimum wage, a Canadian would rake in enough to afford a small fridge, whereas in Russia the income would barely be enough to cover the cost of a meal at The Keg. No wonder vodka and pickles are all we can afford in Russia.

Not only is minimum wage higher in Canada, but the food is cheaper here too. When I first went to a Canadian restaurant, I was thrilled to get twice as much food as you would in Russia, for the same price. The heap of pasta in front of me was two to three times as much as any restaurant back home would serve. The funniest thing is that the more expensive the restaurant, the smaller your portion will be.

Although I’m baffled by Canada’s food obsession, one thing is clear: like their immense appetites and super-sized helpings, Canadians have big hearts to match.

Even with their excess in food, money and vending machine technology, they are very nice people, who would never think badly of you even if you don’t have much money.

A Canadian person would still be a great friend of yours.

And in my opinion, that is what sets Canadian people apart from the rest of the world.

Summary Hearings

14In this case, the Summary Hearing was held further the respondent’s Request. Rule 19A.5 of the Tribunal’s Rules of Procedure reads as follows:

Upon review of the Request and any Response to the Request, the Tribunal will determine whether to hold a summary hearing on the question of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The Tribunal need not give reasons for a declaration to hold or not to hold a summary hearing following a party’s request.

15The issue in a summary hearing 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 part of the Application will succeed. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure where at a merits hearing all evidence is presented and witnesses heard from in the ordinary course.

16In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 to 10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

In considering what evidence is reasonable available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

The Article

17In this case, and leaving aside the issues of whether the respondent is providing a service to the applicant in the publication of the magazine and/or whether or not the applicant was harassed and/or discriminated against by the contents of the Article, I find that the applicant’s allegations with respect to the Article do not have a reasonable prospect of success and are thus dismissed.

18Section 13 of the Code provides:

13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public or any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

(2) Subsection (1) shall not interfere with freedom of expression of opinion.

19In Whiteley v. Osprey Media Publishing, 2010 HRTO 2152, the Tribunal considered whether an editorial in a newspaper violated the Code. The Tribunal concluded that it did not. It first determined that the content of an editorial found within a newspaper was not a service within the meaning of the Code. Then the Tribunal considered whether the editorial fell within section 13 of the Code. The Tribunal concluded that it did not.

20In reaching that conclusion, the Tribunal referred to the Manitoba Court of Appeal’s decision in Warren v. Manitoba Human Rights Commission (1985), 1985 CanLII 5260 (MB CA), 6 C.H.R.R. D/2777, and the Saskatchewan Court of Appeal’s decision in Saskatchewan (Human Rights Commission) v. Engineering Students’ Society, 1989 CanLII 286 (SK C.A.), and stated at paras. 13-14 and 17 as follows:

In Warren, the Court dealt with the issue of whether newspaper columns could be considered a “notice, sign, symbol, emblem or other representation” within the meaning of s. 2 of the Human Rights Act, C.C.S.M. Chap. H175. The Court suggested that had the legislature intended s. 2 to apply to newspaper articles and editorials,, it could easily have done so.

In Engineering Students’ Society, the Court was dealing with a prohibition on the publication or display, including in a newspaper, of “any notice, sign, symbol, emblem or other representation…” The Court agreed with the analysis in Warren and went on to refer to the more specific Ontario provision in reaching the conclusion that the Manitoba provision did not cover the content of newspapers. It held, as follows, at paras. 41312-41313:

For the most part, we agree with this analysis, and that being the case, the phrase in our view has to be taken as prohibiting notices, signs, symbols, emblems or other similar representations. That, incidentally, is how the phrase is cast in the Ontario counterpart to s. 14. Section 12 [now s. 13] of the Ontario Human Rights Code reads thus….

Now if the words “or other representation” be taken as meaning other “similar” representation, then, having regard for the structure of the section and the fact the phrase is concerned with the form of the message, by similar representation is meant representation similar in form.

Construed thus, the phrase does not embrace the content, generally, of a newspaper. It certainly includes the publication in a newspaper of a notice, sign, symbol, emblem or other representation having the prohibited effect, but it does not include the content, generally, of a newspaper. And so we find ourselves unable to agree with the Commission’s view of the scope of the section.

I find that an editorial is not a “notice, sign, symbol or other similar representation” within the meaning of s. 13. An editorial expressing opinions is not similar to the other items on the list, and I adopt the reasoning of Warren and Engineering Students’ Society in this regard. Section 13(2) confirms this interpretation, since to hold otherwise would be to interpret s. 13(1) to interfere with the freedom of expression of opinion. Moreover, to the extent there is ambiguity after considering s. 13, s. 2(b) of the Charter mandates an interpretation that excludes editorials from the section. As publication of opinion in the media is a matter at the core of freedom of expression and freedom of the press in a democratic society, any ambiguity should be resolved in favour of the exclusion of such matters from the Code.

21Following Whiteley, Warren and Engineering Students’ Society, I similarly conclude that a magazine article is not a “notice, sign, symbol or other similar representation” within the meaning of section 13(1) of the Code, and as such the applicant’s allegations with respect to the Article do not have any reasonable prospect of success.

22In the alternative, I also conclude that even if section 13(1) applies, which I find it does not, then the comments within the Article are permitted within section 13(2) of the Code as well as section 2(b) of the Charter, which provides for “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. As such, the applicant’s allegations with respect to the Article, in the context of section 13(2) of the Code, do not have any reasonable prospect of success.

23Accordingly, the applicant’s allegations about the Article are dismissed.

The Respondent’s Harassment and Discrimination Policy

24The applicant asserts in his Application that the respondent’s policy “does not work”. He alleges that he complained about the Article to the magazine’s editor and the respondent’s ombudsperson, both of whom failed to respond to the applicant. He alleges that he contacted the Executive Dean of Art, Media and Design who told him the “article pretended to be humo[u]rous” and he contacted the Vice President Academic who told him “it [was] just [his] personal feelings”. He submits that the respondent did not conduct an investigation or follow its policy and that the respondent’s failure to do so violates the Code.

25The Response does not specifically respond to the applicant’s allegations that he evoked the respondent’s policy by making an inquiry and/or complaint under the policy, and the respondent failed to respond and/or conduct an investigation. During the conference call hearing, and in response to questions by the Tribunal, for the first time the respondent’s counsel stated that he did not act for the ombudsperson, but that the respondent did conduct an investigation although it was apparent that the applicant disagreed with the conclusions of the investigation.

26Despite an apparent conflict in positions between the parties, even if the Tribunal accepts the applicant’s assertions to be true, in my opinion there is no violation of the Code.

27To be successful, the applicant must establish that the respondent treated him differently, as compared to others, based upon his place of origin and ethnic origin. The issue in the summary hearing is whether there is no reasonable prospect that the applicant will be able to show a link between his allegations that the respondent failed to investigate and the grounds of place of origin and ethnic origin

28The assertion that a person is from a certain place of origin or has a certain ethnic origin is not enough by itself to establish harassment or discrimination under the Code. To succeed, an applicant must be able to show that unfair treatment occurred at least in part because of a Code-protected ground.

29Having heard from the applicant, and accepting as true for the purposes of this determination, but not deciding, his allegation that the respondent failed to investigate his concerns about the Article, I conclude that there is no reasonable prospect that the applicant will be able to show that the respondent’s failure to investigate occurred because of the applicant’s place of origin or ethnic origin. The applicant has not been able to point to anything specific that suggests that there is any reason to believe that he has been treated differently by the respondent in its response to his concerns about the Article because of his place of origin or ethnic origin. .

30For these reasons, I conclude that there is no reasonable prospect that the respondent’s alleged failure to investigate into the applicant’s concerns about the Article will succeed and the Application is dismissed on that basis.