Human Rights Tribunal of Ontario
B E T W E E N:
Noel Peter Hoyes Applicant
-and-
Woodbine Entertainment Group and Martin Garcia Respondents
-and-
Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union Intervenor
DECISION
Adjudicator: Jay Sengupta Date: March 23, 2011 Citation: 2011 HRTO 578 Indexed as: Hoyes v. Woodbine Entertainment Group
APPEARANCES
Noel Peter Hoyes, Applicant ) Did not Appear
Woodbine Entertainment Group and ) Sara Parchello, Counsel Martin Garcia, Respondents )
Service Employees International Union ) Local 2, Brewery, General & Professional ) Bruce Price, Counsel Workers’ Union, Intervenor )
INTRODUCTION
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”). The applicant alleges that he experienced discrimination and harassment in employment on the basis of race and colour, contrary to the Code.
2Pursuant to a Case Assessment Direction (“CAD”) issued on December 13, 2010, the Tribunal, on its own initiative, directed that this matter be scheduled for a Summary Hearing under Rule 19 by teleconference. A letter confirming the date and time of the conference call was sent to the parties on January 17, 2011.
3The conference call was held on March 4, 2011, at 1:30 p.m. The respondents were present and represented by counsel. The intervenor union was represented by counsel. The applicant did not attend the conference call. After allowing the applicant an additional 15 minutes to join the conference call, the Summary Hearing proceeded as there was no indication that the Notice of Hearing by Conference Call had been returned as undeliverable or that the applicant had not received it.
4Shortly after the conference call ended, I was informed by the Registrar’s staff that a voice mail message had been left by the applicant indicating that he had tried to phone in to the Conference Call Hearing at 1 p.m. and been unsuccessful.
5In a CAD issued on the same date, the applicant was directed to confirm in writing to the Registrar, with a copy to the respondents and the intervenor union, the efforts made to participate in the conference call hearing within seven days of the date of the CAD.
6The CAD made clear that if the applicant’s written materials were sent within seven days, the Summary Hearing would be rescheduled and that the new date would be peremptory. It also stated that if the applicant failed to meet the seven-day deadline, a decision would be issued based on the written materials on file and the submissions heard from the parties that were in attendance on March 4, 2011.
7The applicant has not filed any written materials and the time for doing so has now elapsed.
8I have considered the materials filed by the parties and the submissions made by the respondents and the intervenor union during the conference call. The Application is dismissed as there is no reasonable prospect that it will succeed for the reasons that follow.
ANALYSIS AND DECISION
9Rule 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.
10In 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.
11Although the applicant did not attend the conference call as directed, or provide oral submissions although given the opportunity, I have reviewed the written materials filed by him.
12The applicant argues that he experienced discrimination on the basis of race and colour. He self-identifies as black. He alleges that the personal respondent called him and a co-worker “dogs