Huseynov v. Nimigan Mihailovich Reporting, 2012 HRTO 807

Taleh Huseynov Applicant

-and-

Nimigan Mihailovich Reporting and Maria Mihailovich Respondents

Gunel Huseynova Applicant

-and-

Nimigan Mihailovich Reporting and Maria Mihailovich Respondents

Adjudicator: Ken Bhattacharjee Date: April 20, 2012 Citation: 2012 HRTO 807 Indexed as: Huseynov v. Nimigan Mihailovich Reporting

appearances

Taleh Huseynov and Gunel Huseynova, ) Taleh Huseynov on behalf of both Applicants ) Applicants

Nimigan Mihailovich Reporting and ) Ian Newcombe, Counsel Maria Mihailovich, Respondents )

INTRODUCTION

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

BACKGROUND

2The organization respondent, Nimigan Mihailovich Reporting, is a court reporting service with a 12-room centre in Hamilton where court reporters provide real time reporting and transcripts of out of court witness examinations. The individual respondent, Maria Mihailovich, is the owner of the organization.

3The applicants, Taleh Huseynov and Gunel Huseynova, are a married couple with a young child. On October 8, 2010, they and their 10-month-old baby attended the organization respondent’s premises because Ms. Huseynova was scheduled to be examined for discovery as part of a civil proceeding in which she and her husband were the plaintiffs. The receptionist directed them to sit in a waiting room.

4The case before this Tribunal relates solely to a brief interaction between the applicants and the individual respondent on that day. The positions of the parties were set out in their pleadings and other written submissions. In addition, the parties made oral submissions at the summary hearing.

5The applicants filed Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on January 14, 2011 which alleged that the respondents discriminated against them with respect to services and/or facilities because of their family status. The Applications were filed by the applicants’ legal counsel at that time. The applicants are now self-represented.

6In their Applications, the applicants alleged that the respondents have a practice or policy of precluding families with young children from attending the organization respondent’s premises, and that the respondents failed to accommodate the applicants’ caregiving needs. Specifically, the applicants alleged that, after being in a waiting room for approximately 30 minutes with their baby who was quietly giggling, smiling, and making faces, the individual respondent entered the waiting room, told them that their baby was making too much noise and interrupting a meeting in an adjacent room, and insisted that they leave the premises, which, after a brief conversation with her, they did.

7The applicants also alleged that they suffered “great… economic hardship” as a result of the discrimination, and requested $40,000 in compensation for the breach of their right to be free from discrimination.

8The respondents filed a Response on April 6, 2011 which denied the allegations of discrimination. The respondents denied that that the organization respondent has a policy to refuse to allow mothers with small children to wait in the waiting room. In fact, the respondents stated, the individual respondent keeps toys in her office for children to play with. The respondents also denied that the individual respondent told the applicants to leave the premises.

9The respondents stated that noise control is essential in the centre because court reporters are transcribing the evidence of witnesses into written form to produce official transcripts, and that it is a common practice to move people who are making noise, including mothers with children, people having conversations, and cell phone users, to an outer waiting area.

10The respondents stated that the individual respondent heard noise coming from the waiting room, and given that discoveries were taking place in several rooms near or adjacent to the waiting room and that noise control was essential, she asked the applicants to sit in the outer waiting area.

11The respondents attached a number of documents to their Response, including a floor plan of the organization respondent’s premises and photographs of the inner waiting room and the outer area. The photograph of the inner waiting room shows four chairs on each side of the room and a table in the back of the room. The room appears to be fairly small. The photograph of the outer area shows approximately 10 chairs and a table leading from a door to in front of the elevators. The area appears to be comparable in size to the inner waiting room.

12The respondents also attached email correspondence between the parties dated October 19, 2010. The applicants sent the individual respondent an email which alleged that the respondents had discriminated against them because of their family status. Specifically, the applicants stated that their baby was “playing”, “laughing”, speaking in “baby language”, and “singing”, and that the individual respondent then told them “to go outside the firm to wait over there.”

13The individual respondent sent the applicants an email in response which apologized if they felt that she had embarrassed them, and explained that she regularly asks people on cellphones, mothers with small children, and others to wait in the area by the elevators where the noise will not disturb anyone in the examining rooms.

14The applicants then sent a further email to the individual respondent which stated that the “damage because of your discriminatory action is huge” and “we will let the Canadian justice in human rights make appropriate action to protect our right[s].”

15The Tribunal sent the Response to the applicants on April 13, 2011, and informed them that a Reply must be delivered to the respondents and filed with the Tribunal by no later than April 27, 2011. The applicants did not file a Reply at that time.

16On September 16, 2011, the Tribunal issued a CAD to the parties by regular mail and email which informed them that a summary hearing would be held to determine whether the Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed. The Tribunal addressed the applicants’ failure to file a Reply at para. 4:

The Tribunal notes that the respondents have provided an explanation of the events in question, to which the applicants have not responded by filing a Reply, noting that the applicants were only asked to wait in a different waiting area where sound would not carry and that the respondents welcome children and have toys for them to play with. Rule 9.1 reads as follows:

An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

17The CAD also stated that it may be evident that the requirement that parents with children wait in an area away from the examination rooms is a reasonable and bona fide requirement pursuant to s. 11 of the Code.

18The applicants then filed a Reply on September 24, 2011 which denied that their baby was making noise, and stated that the individual respondent walked past the waiting room, saw their baby and kicked them out. The applicants admitted that there were a few chairs outside the organization respondent’s premises, but denied that the outside area was on the organization respondent’s property. The applicants also admitted that they sat in the outside area for a period of time, but stated that they eventually had to leave because there was heavy traffic and a cold draft from the elevators which made their baby cry. The applicants also denied that there were any toys in the inside waiting room or the outer area.

19In response to the applicants’ Reply, the respondents filed a letter from the owner and landlord of the building where the organization respondent’s premises are located which stated that the space in front of the elevators is part of the organization respondent’s premises and is a waiting room.

20The applicants then filed a further Reply which stated that, even if the organization respondent is paying rent for the space in front of the elevators, a hallway with a few chairs is not a “waiting room”.

21On December 21, 2011, the Tribunal issued a Notice of Summary Hearing which informed the parties that the summary hearing would take place by conference call on March 28, 2012. The Notice also stated that the timelines for delivery and filing of any documents or submissions were set out in the Tribunal’s CAD dated September 16, 2011.

22The summary hearing took place as scheduled on March 28, 2012. Following my introduction, Mr. Huseynov stated that he never received a copy of the CAD. I pointed out to Mr. Huseynov that the Tribunal sent the CAD to his email and postal addresses, and it was not returned to the Tribunal. I then arranged for the CAD to be re-sent to Mr. Huseynov by email, and adjourned the summary hearing for 45 minutes so that he could review it. After the summary hearing resumed, I also pointed out to Mr. Huseynov that his Reply, which was filed approximately one week after the Tribunal issued its CAD, appeared to be in response to the CAD. He then admitted that he probably received the CAD at that time. In all the circumstances, I am satisfied that the applicants received the CAD in September 2011. In any case, when the summary hearing resumed, Mr. Huseynov indicated that he had reviewed the CAD and was ready to proceed.

23Prior to hearing the parties’ submissions, I directed them to specifically address whether, assuming all the applicants’ allegations are true, the respondents’ conduct amounted to substantive discrimination. I pointed out that the Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code, and that not all actions that have an impact on people identified by a Code ground constitute substantive discrimination.

24I directed the applicants to make their submissions first. Shortly after Mr. Huseynov began his submissions, a child started yelling and disrupted the conference call. Mr. Huseynov left the call briefly, and when he returned he apologized for the interruption. He explained that his wife was listening to the call on a speaker phone in another room where his child was playing.

25I asked Mr. Huseynov whether the child who yelled was the same child who attended the organization respondent’s premises. He confirmed that it was the same child. As a matter of fairness, I also asked him to address the incident given that there is a factual dispute between the parties about whether the same child was making noise on the organization respondent’s premises.

26At first, Mr. Huseynov denied that his child yelled during the conference call. He then appeared to admit that she was loud and explained that she is nearly three years old. He then denied that she was loud when she was a baby.

27The respondents’ counsel asked the Tribunal to take note of the fact that Mr. Huseynov denied that his child had yelled during the conference call because it is relevant in assessing the reliability of the applicants’ evidence that their baby was not making noise in the organization respondent’s inner waiting room.

28In the end, this incident was not relevant to my analysis.

SUBMISSIONS

29The applicants submitted that the Applications have a reasonable prospect of success. Specifically, they stated that the respondents’ conduct amounted to substantive discrimination because kicking them off the premises imposed a disadvantage on them based solely on the fact that they had their baby with them, and constituted a failure to accommodate their caregiving needs.

30The respondents submitted that the Applications do not have a reasonable prospect of success. Specifically, they stated that the respondents’ conduct did not amount to substantive discrimination because the applicants were merely asked to move from one waiting area to another because of a noise issue, and that both waiting areas had the same basic set up with chairs and a table.

ANALYSIS

31Rule 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.

32Furthermore, 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.

33In their Applications, which were filed by legal counsel, the applicants alleged that they left the premises altogether after being directed to do so by the individual respondent. However, after receiving the respondents’ Response, which challenged the factual accuracy of this allegation, and after receiving the Tribunal’s CAD initiating a summary hearing process, they filed a Reply nearly one year after the alleged incident which admitted that they actually waited in the outer area for a period of time before they left.

34The Reply then raised a new allegation: the applicants’ baby was uncomfortable because of the heavy traffic and a cold draft from the elevators in the outer area, which forced them to leave the premises. Again, this alleged fact, which appears to be very important, was not in the Applications filed with this Tribunal. It was also not in the emails that the applicants sent to the individual respondent soon after the incident.

35Putting aside these apparent contradictions and omissions, at their highest, the applicants’ factual allegations are that (1) the individual respondent directed them to leave the inner waiting room and wait in an outer area near the elevators because she believed that their quiet baby had the potential to make noise, and (2) the heavy traffic and a cold draft from the elevators in the outer area made their baby cry and forced them to leave the premises altogether.

36With respect to the applicants’ first factual allegation, the Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 defined discrimination at pp 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

37Moreover, the Code is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

38In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Ontario Court of Appeal also stated at para. 104 that the Tribunal must determine, among other things, whether the treatment in issue “truly creates a disadvantage.”

39In my view, assuming the applicants’ first factual allegation is true, the respondents’ conduct did not amount to substantive discrimination. Even if I accept that the individual respondent directed the applicants to move because she believed that their quiet baby had the potential to make noise, I do not accept that her conduct truly created a disadvantage for the applicants. The outer waiting area was slightly different than the inner waiting room, but it had the same basic set up in terms of size and furnishings. In my view, the fact that the applicants believed that the outer waiting area was inferior because it was not a “room” does not amount to a true disadvantage. The only significant difference between the two waiting areas was the presence of elevators in the second area, which will be addressed below.

40With respect to the applicants’ second factual allegation, this Tribunal and the courts have made it clear that the person seeking accommodation has a duty to make his or her Code ground-related needs known to the service provider in order to trigger the service provider’s duty to accommodate the person’s needs up to the point of undue hardship. See, for example, MacDonald v. Cornwall Public Library, 2011 HRTO 1323; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. In MacDonald, supra, which involved a member of the public with a disability and a library, the Tribunal explained at para. 42

(…) The onus must be on the individual seeking accommodation to advise the library that he or she needs accommodation. Otherwise, the library would be in the very difficult position of having to accommodate persons whose needs it had no means of knowing or investigating. The duty to cooperate as set out in the Renaud case must include an obligation to advise the service provider of the need for accommodation. It is this notice which triggers the duty to accommodate.

41In my view, even if the applicants’ allegation about their baby’s discomfort is true, they did not inform the respondents of that fact and did not ask to be accommodated in another area or room on the premises. Instead they simply left. Accordingly, the respondents’ duty to accommodate the applicants’ family status-related needs up to the point of undue hardship was never triggered.

42In view of the above analysis, it is not necessary to decide whether a requirement that parents with children wait in an area away from the examination rooms is a reasonable and bona fide requirement pursuant to s. 11 of the Code.

43I find that there is no reasonable prospect that the Applications will succeed.

ORDER

44The Applications are dismissed.

Dated at Toronto, this 20th day of April, 2012.

”signed by”________________

Ken Bhattacharjee Vice-chair