Human Rights Tribunal of Ontario
B E T W E E N:
Kamaljit Gill Applicant
-and-
Profix Auto Collision Center Inc. Respondent
DECISION
Adjudicator: Leslie Reaume Date: June 18, 2013 Citation: 2013 HRTO 1082 Indexed as: Gill v. Profix Auto Collision Centre Inc.
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 services because of race.
2By Case Assessment Direction dated January 24, 2013, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure.
3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests.
4The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discriminatory in the legal sense unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.
5The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. Discrimination in the legal sense requires proof of adverse or unfair treatment which is connected to a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, the parties are asked to participate in a summary hearing.
6At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness which would not be considered discrimination in the legal sense, can leave a person with significant financial and emotional damage. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence to support the applicant’s belief that they have experienced discrimination.
7The real question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.
8In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that their personal characteristic played a role in what they experienced. That evidence comes in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.
9The parties are permitted an opportunity to make oral submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.
10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.
11Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.
ANALYSIS
12Neither the applicant nor the respondent participated in the call as scheduled and described in the Notice of Summary Hearing issued March 6, 2013. Consistent with the practice of the Tribunal, I waited 30 minutes for the parties to join the call. I am satisfied that both parties had notice of hearing and chose not to participate and I have decided this matter on the basis of the materials filed.
13The applicant alleges that he lent his car to a friend who damaged his car. His friend was not insured. The applicant was unaware of the accident until he was advised by the financing company that the car was being repaired by the respondent.
14The applicant alleges that he had a dispute with the respondent over payment and repairs. The Application contains no allegations which would assist the Tribunal in understanding the connection between the respondent’s alleged conduct and the ground of race.
15Accepting the applicant’s allegations as true, I find that there is no reasonable prospect that he can succeed in proving discrimination under the Code. This finding is based on the fact that there is no evidence to connect the actions of the respondent to the applicant’s race.
16Accordingly, the Application is dismissed.
Dated at Toronto, this 18^th^ day of June, 2013.
“Signed by”
__________________________________
Leslie Reaume Vice-chair