Grande v. Toronto Transit Commission, 2013 HRTO 1202

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessica Grande

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 10, 2013

Citation: 2013 HRTO 1202

Indexed as: Grande v. Toronto Transit Commission

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"). In its Response (Form 2) to this Application the respondent requested that the Application be dismissed because it has no reasonable prospect of success. The applicant filed a Reply (Form 3) addressing the respondent's request. The request for Summary Hearing was granted and a summary hearing was held by telephone on July 3, 2013.

2The respondent's request that the Application be dismissed is granted, only in part.

3Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

5The facts are not much in dispute in this case. The applicant alleges that on June 25, 2012 she boarded a TTC streetcar, paid her fare and took a transfer from the operator. The applicant alleges that she is "a 27 year old woman from El Salvador of indigenous descent and her racial features are distinct". The applicant alleges that the operator was Caucasian. The applicant alleges that after taking the transfer and taking a seat she heard the operator "murmuring" something she could not understand. The applicant alleges that she returned to the operator and said "sorry?". The operator is alleged to have reacted in a "rude and denigrating" manner and said "do not touch me". In her Application the applicant denies touching the operator and said so to the operator. The applicant alleges that the operator said in an offensive tone repeatedly "ye, you did touch me" The applicant stated that she would file a complaint about the operator's behaviour which apparently prompted the operator to state that she would accuse the applicant of harassing her. The applicant alleges that she then observed the operator washing her hands with a bottle of water and "extended her hands to show everyone what she was doing." The applicant alleges that she left the streetcar approximately 20 minutes later. She alleges that during this period the operator "did not argue or have a disagreement" with any other passengers. The applicant made a call to TTC Customer Service to make a complaint about the incident while still on the streetcar.

6On July 17, 2012 the applicant through counsel wrote a letter to the TTC Claim Department describing the allegedly discriminatory incident and requesting copies of all of the relevant evidence including any video or audio recordings made and the operator's file. The applicant alleges that the respondent's response to this letter of complaint was unsatisfactory.

7The respondent has provided a detailed response to the allegations with respect to the interaction on June 25 2012 which if accepted may be a complete answer to those allegations; however the assertions made in respect of this incident although capable of belief are also not incontrovertible. Accordingly, I have not had regard to the respondent's response in determining the issue before me as it relates to this central allegation made by the applicant.

8The question for determination here is whether there is no reasonable prospect that the Tribunal might draw the inference that the operator's behaviour on June 25 was in whole or in part informed by the applicant's race, colour, ancestry, place of origin and ethnic origin. Having no regard to the Response, I am unable to find that that there is no reasonable prospect that such an inference might be drawn in the circumstances. Rule 19A.6 provides that where the Tribunal determines that all or part of an Application should not be dismissed pursuant to Rule 19A no reasons need be provided and in this case I find that it is appropriate to not provide more detailed reasons.

9As regards the applicant's allegation that the failure of the respondent to retain a video recording of the incident has added to her damages the respondent has responded to this allegation as well. The respondent states that the video recording does not exist as these recordings are retained on a loop and recorded over within 15 or so hours. In order to download the recording the vehicle in question must be taken out of service. For this reason as well as privacy concerns which have been the subject of comment by the Information and Privacy Commissioner the respondent only downloads these recordings where there is a criminal or health and safety investigation. The respondent also states that the recording is video only and is not focussed on the operator such that it may not have recorded much, if any, of the brief interaction between the applicant and the operator. The applicant has no evidence that these assertions are not accurate and the materials provided by the respondent tend to support some of them. In my view the assertions of the respondent in relation to the video recording are of a kind that I can consider in determining whether or not these allegations should go to hearing. In my view this aspect of the Application has no reasonable prospect of success because I find that the applicant can point to no evidence that the failure of the respondent to retain the video recording was unreasonable or informed in any substantial way by any of the grounds claimed.

10The applicant also alleges that the investigation was inadequate and did not address her concerns as reflected in the respondent's letter of August 16, 2013. To the extent that there might be said to be an obligation to investigate such complaints under the Code, the parties may wish to address this issue as well at the hearing.

11The allegations with respect to the incident on June 25, 2012 and the alleged inadequate investigation of the applicant's complaint will proceed to a one day hearing. The allegations with respect to an alleged failure to retain a video recording are dismissed for the reasons set out above.

12I am not seized.