J.L. v. Etobicoke Swim Club, 2012 HRTO 1907

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.L. by her next friend X.L.

Applicant

-and-

Etobicoke Swim Club

Respondent

DECISION

Adjudicator: Kathleen Martin Date: October 5, 2012 Citation: 2012 HRTO 1907 Indexed as: J.L. v. Etobicoke Swim Club

APPEARANCES

J. L. by her next friend X.L., Applicant Self-represented

Etobicoke Swim Club, Respondent Gerard Barosan, Counsel

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”), alleging discrimination with respect to goods, services and facilities because of race and ancestry. This Decision determines whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

2A summary hearing was held to address this issue where the parties made oral submissions. A Mandarin interpreter was present to interpret the proceeding for the applicant’s next friend.

3After the summary hearing, by Case Assessment Direction dated July 20, 2012, I issued directions to the parties with respect to the filing of additional documents and submissions arising from the summary hearing. In addition, in accordance with Rule 3.11.1, I indicated that initials would be used to identify the applicant, who is a minor, and her father, who is her next friend.

4After seeking an extension, which was granted, the respondent filed further documents. Submissions have been filed by the parties in relation to these additional documents. No party raised any objection to the use of initials to identify the applicant and her father. Thus, I continue to identify the applicant and her father with initials for the reasons previously given.

5I have determined that the Application should be dismissed as having no reasonable prospect of success. My reasons follow.

BACKGROUND

6The following summary is based on the Application, Response and related documentary material (where not disputed) and the submissions of the applicant during the summary hearing.

7The applicant’s father self-identifies the applicant as a “visible minority” who is Chinese. The respondent is a competitive swimming club operating in Toronto. The Application arises from the applicant’s unsuccessful attempt to obtain a spot in one of the respondent’s competitive swimming programs.

8In September 2011, the applicant wanted to join the Introduction to Competitive Swimming Program for swimmers ages five to ten offered by the respondent. Acceptance into the program is based on a competitive process. The respondent held two assessments of swimmers: September 12 and 14, 2011. The applicant tried out on the first day. The applicant’s father states that that he and his wife were told by the coach conducting the assessment that the applicant was a good swimmer with some “very strong” strokes and that because there were spots in “Intro 1” (the first level of the competitive swimming program) the applicant would be put in this level. The applicant’s father also states that they were told that they would be contacted on the upcoming Friday and that training would begin on the next Monday.

9The applicant’s parents were not contacted Friday so they emailed the head coach. The parents were subsequently told that the applicant was not accepted for the program based solely on the comments from her assessment and the limited space available.

10While the applicant’s father concedes the program is always “very full and popular”, he states that he believes that the Club or the head intro coach would have known the applicant’s race and ancestry by her family name and that is why she was not selected.

11A Response was filed as well as submissions prior to the summary hearing which included some of the assessment forms from the competitive process of other swimmers who had not been accepted to the program. During the summary hearing, the respondent referenced in oral argument certain additional assessment forms of the swimmers who had been accepted into the program. Following the summary hearing, the Tribunal directed the respondent to file these additional assessment forms; namely, the assessment forms of the candidates who were accepted into the Intro 1 program.

12The respondent states that in order to gain admission to the program, candidates must meet certain criteria (at least five years of age and successful completion of certain swimming aptitude or competency tests such as Ultra Level 5). In addition, candidates are assessed individually by qualified personnel as there are normally more candidates than positions available, particularly at first level. In the selection process in September 2011 this occurred as there were a limited number of spots available (initially stated as three, later clarified as four spots).

13Fourteen assessment forms have been provided: ten are of candidates such as the applicant who were recommended for Level 1 at the same time the applicant competed but were not initially offered a spot (one candidate was subsequently offered but declined a spot); and four are of candidates who were selected for a spot in the Level 1 program. The redaction omitted reference to the names of the candidates which the respondent states that it did for privacy reasons.

14In addition, the respondent provided a copy of a form provided to parents after the assessment. This form – Introduction to Competitive Swimming Post-Assessment Information Sheet – indicates that the swimmer has been placed on a “waiting list” and that the swimmer will be contacted “after all assessments are conducted and exact program room is determined”. The applicant’s father agrees that the applicant’s parents received this information sheet.

RULE 19A.1 AND CASELAW

15Rule 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.

16In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

17The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

18In the Case Assessment Direction dated December 28, 2011, setting up a summary hearing, the Tribunal identified that the applicant should make argument as to why the Application should not be dismissed as having no reasonable prospect of success and point to the evidence on which the applicant will prove a link between the respondents’ actions and the grounds cited, given the explanation of events in the Response.

THE PARTIES’ SUBMISSIONS

19In this case, the applicant’s father argues that his daughter was qualified for the program. The applicant’s father states that he can establish a link between his daughter not being selected and her race and/or ancestry. The applicant relies on two articles which state that there can be discrimination in employment based on name discrimination linked to a person’s race or related grounds. In addition, he asserts that the photographs of the Etobicoke Swim Club reflect that the respondent’s swimming club is for “white people” (although he did not present any copies of the same). Further, he argues that he will establish a link through disclosure that the respondent should produce in the hearing; for example if the assessment forms were produced without being redacted, they would reflect the names of the candidates from which the applicant states race and/or ancestry could be determined. In considering the assessment forms which have been produced, the applicant’s father submits that they support his theory of discrimination. Considered together, the applicant’s father states that there is a reasonable prospect that the applicant can prove discrimination.

20The respondent argues that the applicant has failed to point to any evidence that shows a link between the applicant not being put in the program and the grounds relied on. The respondent referenced the opening page of its website during the summary hearing. The respondent states that the photograph shown of swimmers in the club reflects “two or three minority members” (a fact the applicant did not appear to dispute). The respondent also relies on the assessment forms suggesting that the forms make is apparent that the assessment process was based on merit and the decisions on admission were made accordingly. The respondent notes that with one exception, the candidates selected were recommended by the assessing coach to be considered for admission into Intro 1 and the next higher level, Intro 2.1, and thus were stronger candidates that the applicant who was only recommended for Intro 1.

DECISION

21I do not find that there is a reasonable prospect that the applicant can establish a link between her race and/or ancestry and the respondent’s decision to not offer her a spot in the Intro 1 competitive swimming program.

22In the circumstances of this case, it is not enough for the applicant to show that she was approved for Intro 1 and yet was not provided with a spot in the program given that there were more qualified candidates than spots available. Instead, the applicant must demonstrate that she has evidence or that evidence is reasonably available to her that can show a link between her treatment in being denied a spot in the program and her race and ancestry.

23It is clear from the applicant’s father’s submissions that the Application is based on speculation that the failure to select the applicant was based on her name which is linked to her to race and/or ancestry. While I accept a person’s name may be indicative of race or ancestry, the applicant’s father has not pointed to any evidence that he could present that would support his theory that the reason his daughter was not accepted was her name.

24While in the Application, the applicant’s father initially implied that she was offered a place in Intro 1, in the summary hearing, the applicant’s father agreed the written notification to the parents was that the applicant was placed on a waiting list and that the applicant would be contacted after all assessments are conducted and exact program room is determined. Even assuming the applicant was told she would be put in the Intro 1 level, with this express communication, I find that there is no reasonable prospect that the applicant will be able to prove that she was promised an actual spot (and neither did the applicant’s father suggest otherwise in his oral submissions once the document was highlighted).

25The applicant’s father also relies on his observations regarding the photographs of the Etobicoke Swimming Club which he suggests show that the club is for “white people”. Notably the applicant’s father did not suggest that these photographs pertained specifically to the Intro 1 program that his daughter was competing for in September 2011.

26I am not convinced that the applicant has a reasonable prospect of proving her claim through the photographs of the Etobicoke Swim Club. I did not understand the applicant to be making a systemic claim but rather that she was discriminated against in this particular selection process. I am not convinced that photographs of the club members alone would be an indicator of discriminatory selection in a particular competition in the absence of other evidence.

27Further and in any event, while the applicant’s father argues that there are photographs that support the applicant’s theory, the only photographs that have been pointed to during the summary hearing reflect otherwise (see para. 20 above).

28Finally, I have considered the assessment forms. While the forms are redacted and thus not reflective of the racial and/or ancestral background of participants, I have considered whether the content of the forms is evidence of a link between race and the selection process or otherwise undermines the respondent’s claim that the competitive process was based on merit. In suggesting the forms do, the applicant compares the comments made about her and the four successful candidates. She argues that the comments about her in relation to the freestyle and backstroke categories suggest that she is a “better” candidate (in three instances) or at least similar in one instance (which I presume the applicant means by her comment that she can’t see that Candidate 2 is better than her).

29By way of example the applicant highlights the following comparison of Candidate 1 to herself in the comments of the assessor:

Candidate 1

Freestyle: Breathes every 2; straight arm, okay kick. Sloppy

Backstroke: good body position; Hips sink, more kick. Sloppy

Applicant

Freestyle: Buried head position; strong kick

Backstroke: great body position, strong kick

30However, the respondent argues that while a basic level of proficiency in freestyle and backstroke are minimum requirements to admittance into the Intro 1 program, candidates with more advanced skills in the breast and butterfly strokes are favoured over those with lesser skills in these strokes. The respondent states that this was particularly the case in the fall 2011 session because of the returning candidates in Level 1 from the previous sessions had already gained a certain level of proficiency and therefore new candidates admitted needed to possess comparable skills. The respondent argues that all except for one of the candidates who were accepted were recommended to be considered for admission into Intro 1 and Intro 2.1 because their skill level was sufficiently developed for such placement (including Candidate 1 referred to above). The applicant was recommended for only Intro 1.

31The respondent acknowledges that almost none of the candidates depict a perfect candidate including those candidates selected. However, the respondent explains that the terms used have to be evaluated in context. For example, while candidate with the Swimmer 4 background (referred to as Candidate 1 above) was described as being “sloppy” in the manner of execution of the freestyle stroke, this is generally used to mean that the arms are not entering the water properly, which usually requires only a minor adjustment and is generally easy to correct. The candidate who exhibited this made up for it in his/her other qualities (such as good body position in freestyle and abilities in breast and butterfly strokes). In comparison the applicant had her own shortcomings in freestyle (buried head) and was not proficient in breast and butterfly and her skills were ranked as suitable for only the Intro 1 segment of the program.

32While the applicant had an opportunity to reply to these submissions, no submissions were filed explaining how this evidence would be challenged.

33The applicant’s father was unable to point to any evidence that he has or is reasonably available to him that would establish a link between race and the decision to not select the applicant for the Intro 1 program. Based on the assessment forms and the submissions made (including those submissions of the respondent which were unchallenged) I find that there is no reasonable prospect that the applicant will be able to undermine the respondent’s contention that the competitive process was based on merit. As the respondent indicates, three of the candidates were recommended to be considered for admission into Intro 1 and Intro 2.1, whereas the applicant was only recommended for Intro 1 (a contention that the applicant did not challenge). While the minimum requirements for Intro 1 may be less, I do not find that the respondent’s reliance on a higher standard is indicative of discrimination in a process which is competitive.

34With respect to the fourth candidate, the comparison with the applicant is similar in the comments made about the various swimming strokes insofar as both receive positive comments and some negative comments albeit different in content. Where the fourth candidate appears to distinguish herself or himself is in the additional positive comments. As the applicant herself submits, this candidate’s assessment contains other notes like “good attitude” and “takes instruction well”, which the applicant does not dispute comes from the test (“I think those notes did come from the test”). Given this difference, I have difficulty finding that the applicant has a reasonable prospect of challenging the respondent’s claim that the process was based on merit (more specifically an assessment of merit based on the assessor’s comments of the respective candidates).

35While the applicant’s father did strongly argue that the Application should proceed so he could have access to and challenge the respondent’s selection process further, I find that this amounts to a request to investigate the applicant’s theory and not that the applicant has or can point to evidence that could establish that the applicant was discriminated against on the basis of race and/or ancestry.

36For all of these reasons, I find that there is no reasonable prospect that the Application will succeed. The Application is therefore dismissed.