HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.B. by his next friend M.B.
Applicant
-and-
Oakville Aquatic Club
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: J.B. v. Oakville Aquatic Club
APPEARANCES
R.B. and J.B. by their next friend M.B., ) Patrick James, Counsel
Applicants )
Oakville Aquatic Club, Respondent ) M. Catherine Osborne and Paul
) Rochford, Counsel
INTRODUCTION
1The purpose of this Interim Decision is to deal with various preliminary matters, including whether the Application should be dismissed in whole or in part, and whether a Request to amend the Application should be granted. These issues were addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.
BACKGROUND
2Jl.B., R.B. and J.B. are siblings who joined swim teams at the Oakville Aquatic Club (the “Club”) in 2004. All three of them were minors at that time. In September and October 2008, their mother, M.B. raised an issue involving Jl.B.’s participation in the Club. The issue was resolved after M.B. alleged that the Club was discriminating against Jl.B. because of various disabilities that she had.
3All three siblings eventually quit the Club. Jl.B. and R.B. quit in 2010, and J.B. quit in 2011. Jl.B. is now an adult, but R.B. and J.B. are still minors. Jl.B. did not file an Application with this Tribunal.
4On July 20, 2010, M.B. filed an Application on behalf of R.B. and J.B. as a next friend under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the Club discriminated against them with respect to services and facilities because of their race, colour, place of origin, family status, and relationship and association with a person identified by a Code ground, and subjected them to reprisals because they claimed their rights under the Code.
5Specifically, the Application made the following allegations:
In 2008, the respondent refused to promote R.B. from a junior swim team to a senior swim team, but promoted other swimmers with the same or less capabilities. Several months passed before the respondent promoted R.B. to the senior swim team.
In September 2008, the respondent demoted J.B. from a high performance swim team to a lower performance swim team, but did not demote other swimmers on the high performance swim team with the same or less capabilities.
In March 2010, the respondent refused to promote J.B. to a senior swim team, but promoted other swimmers with the same or less capabilities.
6The Application explained that R.B. and J.B. were discriminated against based on relationship and association and subjected to reprisals because of their disabled sister’s Code-related dispute with the Club. Specifically, the Application stated that the above incidents of discrimination and reprisal occurred after and as a result of M.B.’s allegation that the Club was discriminating against Jl.B. The Application also explained that R.B. and J.B. were discriminated against because they are of South Asian/Sri Lankan descent and dark-skinned in a Club that is predominantly white.
7The Application stated that the last alleged incident of discrimination occurred on June 24, 2010 when the coach of the senior swim team informed M.B. that his decision not to promote J.B. was final.
8The Application also stated that Swimming Ontario has official swim time records which will show that R.B. and J.B. had the same results as or better results than their peers who were promoted ahead of them.
9On September 30, 2010, the respondent filed a Response which denied the allegations of discrimination and reprisal. The respondent stated that its decisions about the applicants’ placement on swim teams may have been difficult for the applicants and their parents to accept, but it was highly objective because it was largely based on their quantitative performance results in practice sessions and competitions. In support of this statement, the respondent attached several documents, including some of Swimming Canada’s official swim time records for J.B. and his peers, and charts that the respondent created comparing the results of J.B. with those of his peers.
10The respondent also stated that its decision not to promote R.B. from a junior swim team to a senior swim team and to move J.B. from one swim team to another occurred in June/July 2008, which was before their mother alleged that the Club was discriminating against their disabled sister in September 2008. In support of this statement, the respondent attached Swimmer Registration forms for R.B. and J.B. which were signed by their mother on July 10, 2008 and appear to confirm the decisions that the respondent had made.
11The respondent also stated that R.B.’s entire Application is not timely because it was not filed within the one-year deadline in the Code, and that the part of J.B.’s Application relating to his alleged demotion in 2008 is also not timely.
12On October 13, 2010, the applicants filed a Reply which stated that the swim time records that the respondent attached to its Response were incomplete, and that the records for R.B. and J.B.’s entire tenure at the Club are hard facts which will speak for themselves. The applicants did not attach those records to the Reply.
13Neither party was represented by legal counsel during the exchange of pleadings. However, after the exchange, both parties retained counsel, who are now on record as their representatives.
14On June 1, 2011, the respondent filed a Request for an Order During Proceedings which requested that the Tribunal dismiss (1) the entire Application because M.B. failed to obtain the signed consent of R.B. and J.B. to file the Application, (2) the entire Application on the basis that it fails to raise a prima facie violation of the Code, and/or (3) the parts of the Application that are outside the one-year statutory deadline.
15On June 15, 2011, the applicants filed a Response which opposed the Request. Specifically, the Response stated that (1) R.B. and J.B.’s signed consent was not required to file the Application, (2) the Application does raise a prima facie violation of the Code, and (3) the entire Application is timely because the applicants are only relying on events outside the one-year statutory deadline as background and contextual evidence for the discrimination and reprisal allegations that are within the one-year deadline.
16On July 8, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it is untimely and/or it has no reasonable prospect of success. The CAD directed the parties to deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the summary hearing.
17On August 22, 2011, the applicants filed a Request for an Order During Proceedings to amend the Application. Specifically, the applicants requested that the original Application be replaced by an enclosed amended Application because the applicants were not represented by counsel when the original Application was filed, and because the amended Application does not raise any new allegations but only clarifies the allegations in the original Application.
18On September 6, 2011, the respondent filed a Response which opposed the Request on the basis that the applicants were attempting to “shift the goals posts” for the summary hearing. The respondent stated that the Tribunal should deny the Request, or in the alternative, only consider the Request after the summary hearing, and even then, only if it is not moot.
19On September 14, 2011, the Tribunal issued a further CAD which stated that the Tribunal would hear oral submissions on the applicants’ Request to amend their Application during the summary hearing.
20The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See s. 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. Rule 1.7(g) also provides that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined. In my view, because there is a significant timeliness issue with respect to R.B.’s allegations, the timeliness issue and the Request to amend the Application should be determined before deciding whether the Application should be dismissed because it has no reasonable prospect of success.
21On October 6, 2011, the applicants filed additional documents, including some of Swimming Canada’s official swim time records for R.B. and J.B. and their peers, charts that their counsel created comparing their results with those of their peers, and a photograph of coaches and youth members of the Club.
22On October 7, 2011, the respondent filed a letter which objected to the applicants’ late filing of additional documents because they were delivered on the cusp of a long weekend and counsel would not have adequate time to review them with the respondent before the summary hearing.
23I agree with the respondent that it was somewhat unfair for the applicants to deliver and file additional documents, which are quite detailed, shortly before the summary hearing. That said, the summary hearing is not a hearing of the merits of the Application where the parties present their full case. Rather, it is a preliminary stage where the Tribunal only considers whether the Application has a reasonable prospect of success, including whether there is a reasonable prospect that evidence that an applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground. See Dabic v. Windsor Police Service, 2010 HRTO 1994. In the end, the respondent did not request an adjournment of the summary hearing, and, in my view, was able to provide fulsome submissions on the additional documents within a summary hearing context.
24The summary hearing took place by conference call on October 12, 2011. I heard oral submissions from the parties and reserved my decision. The following is my decision.
TIMELINESS
25The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
26In their submissions, the applicants did not request that the Tribunal exercise its discretion pursuant to subsection 34(2) of the Code with respect to the allegations in the Application that are outside the one-year statutory deadline. Instead, they stated that they are only relying on events outside the one-year deadline as background and contextual evidence for the discrimination and reprisal allegations that are within the one-year deadline.
27Accordingly, the applicants’ allegations that in 2008 the respondent refused to promote R.B. from a junior swim team to a senior swim team and demoted J.B. from a high performance swim team to a lower performance swim team are dismissed. The Vice-chair or Member assigned to the merits hearing will determine the extent, if any, to which these factual allegations may be relied upon as background or contextual evidence.
REQUEST TO AMEND
28In determining a request to amend an Application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; 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. I will deal with each applicant separately.
29In their Request to amend the Application, the applicants alleged that the last act of discrimination and reprisal against R.B. occurred in June 2010 when she “was not selected for advancement to Senior White.” In their oral submissions, the applicants further alleged that R.B.’s coach continuously discriminated and reprised against her between March 2009 and June 2010 by providing less coaching to her than her white peers.
30In its submissions, the respondent objected to the applicants’ attempt to introduce new allegations of discrimination and reprisal with respect to R.B. between March 2009 and June 2010 because these allegations were not even hinted at in the original Application, which was filed in July 2010, and the applicants have not provided a proper explanation why these allegations were omitted from the original Application. The respondent also stated that it is a non-profit organization with minimal resources to participate in legal proceedings, and it would be unfair to require it to expend additional resources responding to allegations that could have been, but were not, raised in the original Application.
31In their submissions the applicants’ explanation for not including these allegations in their original Application is that they were not represented by counsel at that time.
32In my view, the factors against allowing the Request with respect to R.B. outweigh the factors in favour of allowing it. The main factor in favour of allowing the Request is that the new 2009-2010 allegations are similar in nature to the previous 2008 allegation.
33The main factor against allowing the Request is the applicants’ conduct in seeking the amendment. I agree with the respondent that the new allegations with respect to R.B. were not even hinted at in the original Application. Therefore, I do not accept the applicants’ claim that the amended Application does not raise any new allegations but only clarifies the allegations in the original Application.
34Furthermore, the applicants’ new allegations with respect to R.B. (i.e. the respondent provided less coaching to her than her white peers starting in March 2009 and then refused to promote her to a more senior swim team in June 2010) are similar in nature and time to the their allegation with respect to J.B. in the original Application (i.e. the respondent refused to promote him to a senior swim team in March 2010). The applicants have not claimed or suggested that their mother, who filed the original Application, is unsophisticated. In these circumstances, it is simply not reasonable to say that the new allegations were not included in the original Application because the applicants were not represented by counsel at that time.
35In my view, the Request to add new allegations of discrimination and reprisal with respect to R.B. is an attempt to turn an untimely Application into a timely Application. Furthermore, I accept that there would be some unfairness in requiring the respondent, which is a non-profit organization, to expend additional resources responding to allegations that could have been, but were not, raised in the original Application. As such, the Request to amend the Application with respect to R.B. is denied.
36In light of the fact that the allegation of discrimination and reprisal with respect to R.B. in the original Application is dismissed, and the Request to amend the Application to include new allegations of discrimination and reprisal with respect to R.B. is denied, R.B. is removed as an applicant from the Application, and her Application is dismissed. The style of cause is amended accordingly.
37The Request to amend the Application with respect to J.B. is more straightforward. In their Request and submissions, the applicants alleged that the respondent discriminated and reprised against J.B. by refusing to promote him to a more senior swim team in March 2010, June 2010, September 2010, December 2010, March 2011, and June 2011. The respondent objected to the requested amendment, but did not provide any substantive submissions to support its objection.
38I see no reason not to grant the Request. The applicants’ Request and submissions clarified the allegations of discrimination and reprisal with respect to J.B. in the original Application, and added new allegations that flow from and are a continuation of the alleged facts in the original Application. In addition, unlike the new allegations with respect to R.B., the new allegations with respect to J.B. mainly relate to incidents that occurred after the filing of the original Application. The respondent did not identify any prejudice to it if the Request is allowed. Accordingly, the applicants’ Request to amend the Application as set out in the above paragraph is granted.
REASONABLE PROSPECT OF SUCCESS
39Rule 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.
40Furthermore, 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.
41In view of the fact that the Tribunal has removed R.B. as an applicant from the Application, I will only deal with the parties’ submissions with respect to J.B.
42In his submissions, J.B. withdrew the ground of “family status” from his Application. As such, the ground of “family status” is struck from the Application.
43The overarching allegation that remains outstanding in the Application is that the respondent refused to promote J.B. to a more senior swim team because he is racialized, because of his relationship and association with his disabled sister who had a Code-related dispute with the Club, and as a reprisal because of his disabled sister’s Code-related dispute with the Club.
44With respect to the allegation that the respondent refused to promote J.B. to a more senior swim team because of his race, colour and place of origin, J.B. submitted that it has a reasonable prospect of success because he has extensive Swimming Canada swim time records in relation to him and his peers which unequivocally show that he had better or similar swim times in comparison to his white peers who were promoted ahead of him. He also stated that the swim time records that the respondent attached to its Response were selective and incomplete. He further stated that he has a photograph and other evidence that is reasonably available to him that shows that he was one of a small number of racialized participants at the Club, and that the composition of the coaching staff was predominantly white.
45In its submissions, the respondent stated that the allegation does not have a reasonable prospect of success because it does not disclose any facts that indicate that J.B.’s coaches made their decisions based on discriminatory reasons rather than on their objective views of his abilities. In response to J.B.’s submission about Swimming Canada’s swim time records, the respondent stated the decisions of J.B.’s coaches were not only based on his swim times, but included numerous other factors such as his technique. In response to J.B.’s submission that his peers who were promoted ahead of him were white, the respondent stated that he is incorrect because at least one of those peers is racialized.
46In reply, the applicant submitted that the peer whom the respondent identified as racialized is, in fact, white.
47Courts 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, J.B. has satisfied me that there is a reasonable prospect that evidence that he has or that is reasonably available to him can show a link between the respondent’s refusal to promote him and his race, colour and place of origin. Specifically, he provided more extensive swim time records than the respondent provided, which appear to show that he had better or similar swim times than some of his white peers who were promoted ahead of him. He also provided evidence that he was one of a small number of racialized participants at the Club, and that the composition of the coaching staff was predominantly white. I have also noted that the respondent’s submission that the decisions of J.B.’s coaches were not only based on his swim times, but included numerous other factors such as his technique, appears to be a divergence from its Response which clearly stated that his placement on swim teams was largely based on his quantitative performance results in practice sessions and competitions.
48I appreciate that the respondent has a very different view about the quality of the evidence that J.B. has or that is reasonably available to him, but in my view, the appropriate forum to properly assess and weigh this evidence is at a merits hearing.
49With respect to the allegation of reprisal and discrimination based on relationship and association, J.B. submitted that it has a reasonable prospect of success because of the temporal connection between his sister’s Code-related dispute with the respondent and the respondent’s subsequent decisions to refuse to promote him.
50In its submissions, the respondent stated that the allegation does not have a reasonable prospect of success because there is documentary proof, which has not been contradicted by J.B., that its decision to move him from one swim team to another occurred in June/July 2008, which was before his mother raised a Code-related issue about his disabled sister in September 2008. The respondent stated that J.B. has identified this decision as the first act of discrimination against him. The respondent also stated that J.B.’s coaches deny knowing that his mother raised a Code-related issue about his sister, and that J.B. has not disclosed any facts to show that they knew about it.
51In my view, this allegation has no reasonable prospect of success. J.B.’s submission was limited to pointing to a temporal connection between his disabled sister’s Code-related dispute with the respondent and the respondent’s subsequent decisions to refuse to promote him. He did not indicate that there is any other evidence that he has or that is reasonably available to him that can show a link between the respondent’s refusal to promote him and his sister’s Code-related dispute with the respondent. Furthermore, he did not dispute the accuracy of the respondent’s documentary evidence which appears to show that the respondent’s first alleged discriminatory act against him actually occurred before his sister’s Code-related dispute with the respondent. This evidence contradicts J.B.’s assertion that the acts of discrimination and reprisal began after and as a result of his mother’s allegation that the Club was discriminating against his disabled sister. Accordingly, J.B.’s allegation of reprisal and discrimination based on relationship and association is dismissed.
CONSENT
52M.B. attached a Form 4 (Application on Behalf of Another Person) to the Application. The Form 4 was filled out in accordance with the Tribunal’s Rules of Procedure and Practice Direction on Applications on Behalf of Another Person which do not require that a person who is filing an Application on behalf of a minor as a next friend under s. 34(1) of the Code provide the signed consent of the minor. As such, the respondent’s Request to dismiss the Application because M.B. failed to provide the signed consent of J.B. is dismissed.
NEXT STEPS
53For the sake of clarity, within 21 days of the date of this Interim Decision, J.B. shall deliver to the respondent and file with the Tribunal an amended Application which sets out the alleged incidents of discrimination and the dates that they occurred. Within 35 days of receiving the amended Application, the respondent shall deliver to the applicant and file with the Tribunal an amended Response. Within 14 days of receiving the amended Response, J.B. may deliver to the respondent and file with the Tribunal a Reply.
54The parties have already attended a mediation at the Tribunal. As such, the Registrar will schedule a two-day hearing of the merits of the Application.
ORDER
55The Tribunal makes the following orders:
R.B.’s allegation in the original Application that in 2008 the respondent refused to promote her from a junior swim team to a senior swim team is dismissed.
R.B.’s Request to amend the original Application to add new allegations of discrimination is denied.
R.B. is removed as an applicant from the Application, and her Application is dismissed.
J.B.’s allegation in the original Application that in 2008 the respondent demoted him from a high performance swim team to a lower performance swim team is dismissed.
J.B.’s Request to amend his Application is granted. The style of cause is amended accordingly.
The ground of “family status” is struck from R.B.’s amended Application.
J.B.’s allegation of reprisal and discrimination based on relationship and association in the amended Application is dismissed.
J.B.’s allegation that at several junctures in 2010-2011 the respondent refused to promote him to a more senior swim team because of his race, colour and place of origin shall proceed to a merits hearing.
Within 21 days of the date of this Interim Decision, J.B. shall deliver to the respondent and file with the Tribunal an amended Application which sets out the alleged incidents of discrimination and the dates that they occurred.
Within 35 days of receiving the amended Application, the respondent shall deliver to the applicant and file with the Tribunal an amended Response.
Within 14 days of receiving the amended Response, J.B. may deliver to the respondent and file with the Tribunal a Reply.
56I am not seized of this matter.
Dated at Toronto, this 25th day of April, 2012.
“signed by”
Ken Bhattacharjee
Vice-chair