Price v. Anyanwoke, 2011 HRTO 676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Price

Applicant

-and-

Irene Anyanwoke

Respondent

DECISION

Adjudicator: Judith Keene

Date: April 7, 2011

Citation: 2011 HRTO 676

Indexed as: Price v. Anyanwoke

Appearances by

Kenneth Price, Applicant ) Self-represented

Irene Anyanwoke, Respondent ) Isaac Folyan, Counsel

1This is a Decision in respect of an Application filed on January 1, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which alleges that the respondent discriminated against the applicant with respect to employment on the basis of race, colour, ancestry, place of origin and ethnic origin, contrary to s. 5 of the Code.

2The applicant was the respondent’s manager at an LCBO store in Scarborough at the relevant time. The applicant claims that he was informed by a third party that the respondent believed that the applicant “hated her” because she is black. The applicant asserts that he has been wrongfully accused of racism. He believes that such an accusation constitutes discrimination under the Code.

3The respondent filed a Response and the applicant filed a Reply. On January 10, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a Summary Hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure.

4The CAD pointed out that the Tribunal does not have the power to deal with general allegations of unfairness, but only to determine whether there has been discrimination by the respondent on a ground prohibited by the Code. The CAD also noted that the Application does not appear to identify a link between the alleged discriminatory treatment and the grounds cited. The applicant was asked to be prepared to address the legal authority upon which he bases his claim that an incorrect accusation of racism is, in and of itself, discriminatory under the Code. The CAD also directed that the applicant be prepared to explain how he can prove, on a balance of probabilities, that he experienced discrimination on the basis of race, colour, ancestry, place of origin and/or ethnic origin, and the evidence he would use to establish that.

5The CAD went on to advise the parties that if the Tribunal were to determine that the Application has no reasonable prospect of success, it would be dismissed, but, if not, the Application would continue in the Tribunal process.

SUMMARY HEARING

6The Summary Hearing was held by teleconference on March 14, 2011.

7During the hearing, the applicant and the respondent clarified some of the points noted in the Application, Response and Reply. Both parties agreed that the respondent worked part time at the LCBO, and that she held another job at a workplace at which there was a strike. Both parties also agreed that the respondent approached the applicant, who was her manager in the workplace, more than once during that time to request more hours of employment. The applicant did not give her more hours, stating that he understood the collective agreement to bar this. Both parties agreed that the respondent was not happy with the refusal of hours. Both parties also provided information about a dispute between them involving the timing of a lunch break for the respondent. Neither of these disputes involve allegations of discrimination, and the details are not relevant to this Application.

8The applicant stated that he gave a party attended by members of the staff of the store. He indicated that another employee, NC, who attended the party, told him that the respondent “would not be coming because she did not get a personal invitation and because you don’t like her because she is black”. On the following day, the applicant talked to another employee, MS, and asked him if he had heard a comment of this nature from the respondent. The applicant said that MS said that he had heard something of that nature but did not want to get involved.

9The applicant did not speak to the respondent to ask whether she had said anything of this nature, and, if so, what she had said. The applicant indicated that he had discussed the information he had received with others at the workplace, and asked them what they thought of the situation. He indicated that someone had something to the effect that the respondent had “done this before”. He did not elaborate on who he spoke to other than NC and MS, or what the respondent was alleged to have done other than make the alleged comment that the applicant hated her because she was black.

10The applicant denied making the alleged comment to anyone. She stated in her Response that she thinks NC looked for ways to get her into trouble with the applicant.

11I pointed out to the applicant that s. 8 of the Code supports the ability of individuals to freely assert their human rights without threat of reprisal, and asked if it might not be reasonable to assume that an individual who thought that he or she was being discriminated against might discuss this view with a co-worker, as indeed he had done. He replied that his situation was different, as he had not “named names”. However, this is at odds with his own position. He stated that someone at the workplace other than NC and MS had said something to the effect that the respondent had “done this before”.

12The applicant did not, as requested, put forward any theory as to why the single comment allegedly made by the respondent, which he characterizes as an incorrect accusation of racism, is, in and of itself, discriminatory under the Code. The applicant also gave no evidence that would establish a link between his race, colour, ancestry, place of origin or ethnic origin, and the alleged comment.

13I appreciate that the applicant was offended by the alleged remark. However, in the absence of any other claim of actions or omissions of a respondent resulting in adverse consequences or disadvantage to the applicant, it is not clear to me that an accusation of racism, even if false, can breach the Code. As noted in the Case Assessment Direction in this matter, the Code specifically asserts and protects, in s. 8, the right of an individual to “claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing”. Freedom of expression is not an absolute right. However, the applicant’s argument, if accepted, could make any applicant alleging a breach of the Code vulnerable to an allegation that they themselves have breached the Code in simply making the allegation. Section 8 is clear indication that this was not the intention of the legislature.

14In the circumstances of this case I find that the Application has no reasonable prospect of success.

15The Application is dismissed.