Josette Granville v. REENA Toby and Henry Battle Development Centre, 2012 HRTO 1062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Josette Granville Applicant

-and-

REENA Toby and Henry Battle Development Centre Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: May 28, 2012 Citation: 2012 HRTO 1062 Indexed as: Granville v. REENA Toby and Henry Battle Development Centre

APPEARANCES

Josette Granville, Applicant Ayoob Khan, Representative

REENA Toby and Henry Battle Development Centre, Respondent Lia Preyde, Counsel

Introduction

1The purpose of this Interim Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. This issue was addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2The respondent, REENA Toby and Henry Battle Development Centre, is not-for-profit social service agency which assists individuals with developmental disabilities to integrate into mainstream society. The respondent runs a four-month Disability Development Counsellor (“DDC”) Program which has academic courses and work placements. Students who successfully complete the Program may be hired by the respondent or one of its partner agencies.

3The applicant, who identifies as a Black woman of African origin, entered the DDC Program in July 2010. In September 2010, the respondent dismissed her from the Program.

4On August 24, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which alleged that the respondent subjected her to harassment and discrimination with respect to services because of her race, colour, place of origin, and ethnic origin. Specifically, she made the following allegations:

1. In July 2010, the applicant’s instructor erroneously docked her half a mark off her overall mark on a quiz. When the applicant pointed out the error to her supervisor, her supervisor told her that it was only a half mark, became offended when the applicant’s defended her claim for an additional half mark, and refused to give her the half mark.

2. After this incident, the applicant failed the course because of a lack of support from her instructor and supervisor, and when she discussed her exam paper with her supervisor, her supervisor spoke to her in a humiliating manner and yelled at her.

3. The respondent refused to put the applicant in the placement locations that she requested.

4. The applicant’s supervisor told her that she was not allowed to resit a test that she failed until October 2010, which was shortly before graduation. The applicant called the Ministry, was able to resit the test in late August 2010, and passed the course.

5. In September 2010, the respondent’s learning and development manager and the applicant’s supervisor called her into a meeting and dismissed her from the DDC Program on the basis that she could not compose herself and did not fit into the respondent’s profile. They escorted her off the property and instructed a security guard not to allow her back on the property.

5The applicant stated that she was harassed and discriminated against by the respondent because she is a Black woman. She explained that she knows of several White students who were treated differently than her in similar circumstances. Specifically, she stated that the respondent gave a White student extra marks on tests on several occasions after the student complained, put two White students in the placements locations that they requested, allowed a White student who had serious attendance issues to graduate, and provided tutoring to a White student who had academic difficulties. She also stated that she knows of other Black students who were discriminated against by the respondent.

6On November 21, 2011, the respondent filed a Response which denied the allegations of harassment and discrimination. Specifically, the respondent stated:

1. The applicant’s disputed answer on the quiz was simply incorrect, and, in any case, her instructor and supervisor awarded her an extra half mark for an answer on another part of the quiz that was not in dispute.

2. The respondent was unable to put the applicant in the placement locations that she requested because it did not have any placements in those locations. The respondent also accommodated the applicant by changing her placement location several times upon her request.

3. The respondent dismissed the applicant from the DDC Program because of a lack of professional conduct, including aggressive and impatient behaviour, an inability to accept constructive criticism and work well with others, talking poorly about the respondent and behaving erratically in front of staff and clients, and an unwillingness to discuss or implement a resolution that would see her continue in the Program.

4. The respondent requires that its entire staff take a cultural sensitivity course, has a diverse workforce, and has employed a number of Black students from the DDC Program.

7On December 5, 2011, the applicant filed a Reply which simply maintained that the allegations in her Application were true. The Reply did not address most of the allegations that the respondent made against the applicant in its Response.

8On January 3, 2012, the Tribunal issued a Case Assessment Direction which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success.

9The summary hearing took place on May 17, 2012. The applicant’s representative was surprisingly uncooperative during the hearing in that he refused to provide a summary of the evidence of a proposed witness, and refused to provide specific responses to the allegations that the respondent made against the applicant in its Response. The applicant’s representative and the applicant only provided this information after I had impressed upon them several times the importance of providing such information.

ANALYSIS

10Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

11Furthermore, in Dabic, supra, the Tribunal made the following comments at paras. 8-10:

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.

12In her submissions, the applicant stated that her Application has a reasonable prospect of success because there is a reasonable prospect that evidence she has or that is reasonably available to her can show a link between the respondent’s conduct and her race, colour, place of origin, and ethnic origin. Specifically, the applicant stated that she has evidence that several White students who were in similar circumstances as her were treated more favourably by the respondent, and that she will be calling a Black student as a witness who will testify that the respondent discriminated against other Black students.

13In its submissions, the respondent reiterated its version of the facts and stated that even if the applicant has established a prima facie case of discrimination, the respondent has provided a non-discriminatory explanation for any differential treatment. The respondent also stated that it will call White students as witnesses who will testify that they were treated the same way as the applicant, and Black students who will testify that that the respondent treated them well. The respondent further stated that it will present evidence that the respondent hired numerous Black students after they completed the DDC Program.

14Courts and tribunals have recognized that racial discrimination can be the result of subtle, unconscious beliefs, biases, and prejudices, and is often only proven by circumstantial evidence and inference. See Shaw v. Phipps, 2012 ONCA 155, at para. 34; Sinclair v. London (City), 2008 HRTO 48, at para. 18; and Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 (B.C.H.R.T.), at para. 482. At this preliminary stage, the applicant has satisfied me through her submissions that there is a reasonable prospect that evidence that she has or that is reasonably available to her can show a link between the respondent’s conduct and the Code grounds listed in her Application. I appreciate that the respondent has a very different view than the applicant about the quality of the evidence that the applicant has or that is reasonably available to her, but, in my view, the appropriate forum to properly assess and weigh this evidence is at a merits hearing.

15I would add that during the summary hearing, the applicant disputed the factual accuracy of the allegations that the respondent made against her in the Response, and set out her own version of the facts. The appropriate forum to properly resolve these factual disputes is at a merits hearing, not a summary hearing.

16In conclusion, I find that the Application has a reasonable prospect of success and shall proceed to a merits hearing. Given that the parties have indicated a willingness to participate in mediation, the file will be placed in the queue for scheduling a mediation in this matter.

17I am not seized of this matter.