HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edward Patrzalek
Applicant
-and-
Sears Canada
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Patrzalek v. Sears Canada
Appearances
Edward Patrzalek, Applicant ) Self-represented
Sears Canada, Respondent ) D. Alan Whyte, Counsel
1103531 Ontario Inc., c.o.b. as Video Plus ) Pieter Joubert, Counsel
INTRODUCTION
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, ancestry and ethnic origin in connection with goods, services and facilities. The applicant alleges that the respondent improperly prevented him from using its catalogue service that operated out of the Video Plus store in Red Lake, Ontario.
2By Case Assessment Direction (“CAD”) dated September 28, 2010, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. It stated as follows at para. 5:
In my opinion, the most appropriate procedure, given the issues raised in the Application, is to hold a summary hearing on whether the Application has a reasonable prospect of success. Accordingly, the Tribunal will schedule a ½ day summary hearing by teleconference. The applicant will make his argument first. He shall be prepared to explain how he can prove, on a balance of probabilities, that he experienced discrimination on the basis of race, ancestry and/or ethnic origin, and the evidence he would use to establish that.
3The CAD also directed the respondent to disclose to the applicant any records relating to the incidents in question to the applicant. The Summary Hearing was held by teleconference on January 27, 2011.
4After the CAD was issued, the parties filed a number of documents for consideration at the Summary Hearing. The applicant filed an audio cassette purporting to record the applicant’s conversation with an employee of Video Plus when he attended the store on August 19 and August 26, 2009. The respondent filed a letter dated December 3, 2010, setting out its position in the matter and containing several screen prints from Sears Customer Service, which contained recordings of interactions between Customer Services and the applicant.
5The applicant did not name Video Plus as a respondent in his Application. However, Video Plus set out its position in a letter dated October 29, 2010, and sought clarification of its status in the matter. On November 9, 2010, the Tribunal issued a second CAD, acknowldeging Video Plus to be an affected party in the Application and permitting it to attend and participate in the Summary Hearing. Video Plus also filed screen prints from Sears Customer Service and several cases it intended to rely upon at the Summary Hearing.
ANALYSIS
Parties to the Proceeding
6Sears and Video Plus each made submissions regarding its status in the proceeding. Sears took the position that it was not a proper party since it was essentially a stranger to the dispute. Sears indicated that Video Plus is an independent merchant and it was the acts of Video Plus and its employees that form the substance of the dispute.
7Video Plus agreed that it is independent from Sears and acknowledged that it was responsible for the actions at the heart of the dispute with the applicant, although it maintained that its actions were not discriminatory. However, Video Plus took the position that it could not be a respondent because the applicant sought remedies only from Sears.
8I do not need to decide this issue since I have concluded that the Application has no reasonable prospect of success, whether against Sears or Video Plus. However, I would point out that the Tribunal determines questions of party status based a review of an application as a whole with emphasis on the facts and issues raised in the application or response. The Tribunal may consider the remedies requested in its analysis, but will not be unduly technical, particularly when self-represented applicants are involved who may be unaware of the need to link remedies to the factual allegations supporting their applications.
Summary Hearings
9The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The 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.
10In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, 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.
In considering what evidence is reasonably 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 a 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.
Application to the Facts
11The respondent is a well-known retailer. It maintains a catalogue service that allows customers to order items and have them delivered to catalogue agents. Video Plus is such an agent.
12On August 13, 2009, the applicant attended the Video Plus store and sought the assistance of an employee, Jennifer Bowman, to purchase shoes he ordered at a sale price. Ms. Bowman declined the applicant’s request because the shoes he ordered were not on sale. The applicant did not agree and asked Ms. Bowman to call Sears Customer Service. She declined and after a discussion the applicant left the store.
13Ms. Bowman alleges she found the applicant’s behaviour to be abusive and disruptive, as she alleges he repeatedly insisted that she should call Sears Customer Service and became increasingly negative in his tone. She reported the incident to the owner of Video Plus, David Fetterly. Based on Ms. Bowman’s account, Mr. Fetterly decided to ban the applicant from the Video Plus store. Accordingly, when the applicant attended Video Plus on August 19 and 26, 2009, Ms. Bowman informed him he was not permitted on the premises and asked him to leave.
14The applicant denies that he behaved improperly and asserts that the only explanation for denying him service is discrimination on the basis of race, ancestry and ethnic origin. The applicant states that his surname is Polish and he believes Video Plus denied him service when it became aware of his name in the course of his dealings at the store. The applicant provided no other evidence or explanation to support the allegation of discrimination.
15Even if I were to accept that Sears is responsible for the decisions of its agent Video Plus in delivery of its services to him, and if I were to accept all the applicant’s evidence as true, I am not satisfied that evidence establishes a link between the decision to ban him from the store and a breach of the Code. The applicant was unable to explain how or why his race, origin or ancestry was a factor in the decision to ban him the store. Accordingly, there is no reasonable prospect that the Application would succeed.
16The Application is dismissed.
Dated at Toronto, this 4th day of February, 2010.
“Signed by”
__________________________________
Douglas Sanderson
Vice-chair