HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Harriet Quiku
Applicant
-and-
Young Women’s Christian Association of Greater Toronto
Respondent
DECISION
Adjudicator: Mary Truemner
Indexed as: Quiku v. Young Women’s Christian Association
appearances
Harriet Quiku, Applicant ) Self-represented
Young Women’s Christian Association of ) Frances Gallop and Greater Toronto, Respondent ) Melanie McNaught, Counsel
1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed in accordance with Rule 19A.1 of the Tribunal’s Rules of Procedure.
BACKGROUND
2On July 20, 2011, the applicant, who self-identifies as a black African from Ghana, filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to services because of her race, colour and place of origin.
3The Application describes the applicant’s experience staying in the respondent’s shelter for women from April 2010 to March 2011 and her experience being denied entry into the shelter after she obtained housing elsewhere.
4On July 20, 2011, the respondent filed a Response contesting and providing context for some of the facts, and denying the allegations of discrimination.
5On August 23, 2011, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held by teleconference to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.
6On September 27, 2011, the applicant filed a Request for an Order During Proceedings to amend the Application, which the respondent opposed.
7On November 21, 2011, the Tribunal issued another Case Assessment Direction, noting that the Request did not describe what language in her Application the applicant would like to change or what language she would like to add. The Tribunal directed that the Request would be dealt with at the summary hearing.
8The summary hearing took place by conference call on January 9, 2012, and the parties made submissions.
ANALYSIS AND FINDINGS
9Rule 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.
10Furthermore, in 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.
11In her Application, the applicant described several experiences and communications with staff at the shelter which she says were discriminatory.
Staff Pressure to Switch Schools
12The first is her experience being pressured by the staff to switch her children’s school even once she decided that she did not want them to attend a different school. She did not contest the respondent’s position that the pressure from the staff was because they did not want her abusive ex-husband to trace her children’s location through their school, nor did she contest the fact that the respondent has a policy with respect to requiring residents to arrange to have their children change schools where the residents are at risk of violence from their abusive spouses. Instead, the applicant argued that two residents at the shelter also escaping domestic violence had not been pressured to switch their children’s schools, and, if there was any policy, then an exception should have been made for her as it was made for those other women.
13When asked about the two residents who were allegedly not pressured, the applicant said that she did not know them or their circumstances very well, but described one as a Spanish-speaking woman, and the other as a black woman from Africa. While the applicant argued that the African woman’s skin was not as dark as her own, she offered no evidence to demonstrate that the respondent targeted the applicant as opposed to the other residents on the basis of her particular skin tone. Although the applicant was obviously facing difficult times and had good reasons of her own not to transfer her children out of their school, she could not provide evidence that her situation was the same as the resident of different race, colour and place of origin, or that it was the same as the resident whose skin was “not as black” as the applicant’s. In the circumstances, it appears to me that there is no reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the treatment she received at the shelter with respect to her children’s school and her race, colour and place of origin.
Bus Tickets, Diapers, etc.
14The second set of allegations in the Application involves the reluctance of the shelter staff to provide the applicant at certain times with bus tickets, diapers, snacks, and help completing applications for housing. At the summary hearing, the applicant agreed that this resistance was reprisal for her own refusal to transfer her children to another school, and not discrimination because of her race, colour and place of origin, or reprisal for claiming or enforcing her rights under the Code. Therefore, there is no reasonable prospect that the applicant can show a link between her allegation that the respondent held back supplies and the grounds in the Code.
Comments about the Baby
15The next experience described in the Application as discriminatory involved comments of a shelter councillor and a maintenance worker about the applicant’s youngest child, a baby girl, who was born while the applicant was still a resident. The baby was born prematurely and was very small. One comment was that the baby looked like the speaker’s cat, and the other compared the baby to a doll. At the summary hearing, the applicant explained that in her country, it is offensive to compare human beings to animals, and also that her baby should not have been compared to an object. She further described a day at the shelter when her baby was on the living room floor with another resident who put a watermelon beside the baby, comparing the baby’s size to the watermelon, and stating that the baby was smaller.
16The applicant did not describe any evidence which might establish that the comments were made because of the applicant’s race, colour or place of origin, or even that the comments were meant or known by the speakers to be offensive. The comments, on their face, are neutral, and it is common to hear people in Canada compliment the appearance of babies by comparing them to dolls as if to say that the baby is perfect looking. Furthermore, while the applicant was offended by the references to a doll or a cat given her cultural identity which is linked to her place of origin, once the applicant communicated her offence to the terms used, the speakers stopped using them. Her need for cultural sensitivity was respected. With regard to the resident’s comparison of the baby’s size to a watermelon, while it may have been insulting given the fact that the baby was born prematurely, size is not a prohibited ground in the Code. Nor do I see how the baby’s size might be linked to the applicant’s race, colour or place of origin. In this context, I fail to see how the comparisons may be reasonably considered to amount to a Code violation. There is no reasonable prospect of success for these allegations that comments on the baby’s appearance amount to a Code violation.
Suggestion for Warmth
17The Application also includes a description of an evening when the applicant’s room at the shelter was very cold. She asked the staff for a heater or better blankets, and the staff did not give any to her. Instead, the staff person suggested that the applicant sleep in her clothes to stay warm, as she herself had done when she was camping in Africa. The applicant felt that the staff person was shaming her for being African. In the Response, the respondent explained that when the staff offered to go to her room to check the heater, the applicant told the staff that her heater was working, but it was still cold. The Response also states that the staff offered to get the applicant more blankets, but the applicant wanted a different kind, a duvet, rather than the thin kinds already supplied. The respondent only had one kind of blanket to offer, which the applicant refused, so the staff person suggested that the applicant sleep in extra clothing, indicating that she herself lives in an older house and would sometimes wear extra clothes to bed, as she had also done while she was on a camping trip in Africa where the nights had been cold.
18At the summary hearing, the applicant explained that what she felt was discrimination because of her race, colour and place of origin was the comment about how the staff person had camped in Africa, wearing extra clothes there because it was cold. The applicant said that she was insulted by the staff’s reference to Africa, where she is from, even though she acknowledged that it may be true that the staff person had dealt with cold nights there in that fashion.
19The applicant did not describe any evidence which might establish that a heat source was denied or the suggestion of extra clothing was made because of the applicant’s race, colour or place of origin, or even that the suggestion was known by the staff person to be offensive. A mere reference to someone’s place of origin is not on its own discrimination. On its face, the suggestion appears to be an attempt by the staff person to be helpful when no other possibilities of help were acceptable to the applicant. While the applicant may have been offended by the suggestion, in the context of a reference to Africa, I see no link between the suggestion, on its own, and the prohibited grounds cited in the Application. As well, I see no reasonable prospect that the evidence the applicant has or that is reasonably available to her can show a link between the suggestion and the alleged prohibited grounds.
Entry Refusal
20The final incident cited in the Application as discriminatory occurred after the applicant moved out of the shelter and into her own home, but wanted to pick up a letter at the shelter that she understood was available. Staff told her that she could not enter the shelter as an ex-resident for the safety of other residents. The Application asks:
Again, I understand the safety issue, but if they are talking about safety, why is it other ex-residents and other women from community could enter the shelter, eat and have conversation with other residents and I cannot?
21The Response states that it is the policy at the shelter that former residents are not permitted to return to the shelter to visit with other residents unless they have an appointment with a worker. The Response states that the applicant appeared without an appointment, and that the letter the applicant sought had already been mailed to her so it was not available at the shelter when she appeared. She was denied entry as dictated by the shelter’s policy.
22At the summary hearing, the applicant explained that while she was a resident at the shelter, she saw White women who were ex-residents sitting in the living area. She saw them taking food, and when some of the residents complained, the staff agreed that they should not have been permitted to do so. The applicant admitted, however, that she did not ask the ex-residents what they were doing at the shelter. She agreed that they could have been waiting for a worker with whom they had appointments.
23The applicant said that she knew Black ex-residents from Africa besides herself who had attempted to visit the shelter without appointments, and they were denied entry. Recently, after she filed her Application, the applicant attended the shelter to pick up Christmas presents from the shelter for her children, and she saw that another ex-resident, who was White, was in the shelter even though the woman did not have an appointment. The woman told the applicant that she had “dropped by” to speak with a staff person who she hoped was available because she saw the staff person’s car in the driveway. The applicant admitted that she did not know why the woman wanted to speak with staff or for how long the woman had been trying to connect with staff.
24Counsel for the respondent clarified that while the policy of the shelter is to not allow ex-residents to return, if the shelter has something for an ex-resident to pick up, then it will allow the ex-resident into the office area to get it. Counsel for the respondent pointed out that, at Christmas time, it was not only the White ex-resident described in the above paragraph who was allowed into the shelter, but also the applicant herself who was there to pick up the presents.
25Given the shelter’s policy, and given the absence of any evidence to show that ex-residents allowed into the shelter were there without any staff needing to see them, or without something to pick up at the shelter, I see no reasonable prospect that the evidence the applicant has or that is reasonably available to her can show a link between the respondent denying her entry the first time she returned to the shelter as an ex-resident, and the alleged prohibited grounds.
Request to Amend
26At the summary hearing, the applicant explained that she wanted to add to her Application the allegations that the respondent is reprising against her for filing the Application at the Tribunal. She gave the following examples as reprisal:
she was not invited to the shelter’s Christmas party for ex-residents at the end of 2011;
the Christmas presents she received after the party were not as good as what some of the other ex-residents received so that she had to request a gift certificate; and
the shelter staff are not adequately helping her to apply for a housing transfer within public housing where she now lives.
27The purpose of the summary hearing was not to hear evidence, but simply to determine whether the applicant could demonstrate that she would have sufficient evidence, if the process continued to a hearing, to avoid dismissal at this early stage on the basis that there is no reasonable prospect that she could succeed. Nevertheless, a useful conversation ensued at the summary hearing after the respondent learned that the applicant felt that she was being denied assistance which she stated she desperately needs. The respondent’s counsel had no knowledge of the first problems related to the Christmas party and presents, but her client on the conference call pointed out that the shelter was helping the applicant with her application to transfer to another home, and would continue to do so regardless of this Application or its outcome. The applicant, who had described a murder witnessed by her son outside her unit, appeared reassured.
28The Tribunal has permitted amendments to applications made under section 34, taking into account the nature of the amendment, whether prejudice will result to the other parties to the Application, the stage at which the request to amend is made, and whether the proposed amendment is fair. See Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
29In this case, the applicant is seeking to add a new ground: reprisal. Section 8 of the Code provides:
- Every person has a right 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.
30Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention by the respondent to reprise for that reason. See Shakhnazarov v. Geroge Brown College, 2011 HRTO 1917
31The applicant could not describe any evidence that the respondent intended to reprise against her because she filed her Application, and I therefore find that there is no reasonable prospect that the evidence the applicant has or that is reasonably available to her can show a link between how the shelter treated her after she left and reprisal. It would not be fair to allow the applicant to amend the Application to add an allegation that she has no reasonable prospect of proving. Consequently, the Request is denied.
ORDER
32The applicant is not permitted to amend her Application. With respect to her allegations already filed, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. The applicant has not demonstrated that there is a reasonable prospect that evidence she has or that is reasonably available to her can show a link between the respondent’s treatment of her and her race, colour and place of origin.
33Accordingly, the Application is dismissed.
Dated at Toronto, this 27th day of January, 2012.
”signed by”______________
Mary Truemner
Vice-chair