Sahathevan v. Kawartha Child Care Services, 2013 HRTO 1318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Krisha Sahathevan

Applicant

-and-

Kawartha Child Care Services

Respondent

DECISION

Adjudicator: Mary Truemner

Date: July 30, 2013

Citation: 2013 HRTO 1318

Indexed as: Sahathevan v. Kawartha Child Care Services

APPEARANCES

Krisha Sahathevan, Applicant

Self-represented

Kawartha Child Care Services, Respondent

Chris Russell, Counsel

Introduction

1This is an Application filed under s. 34 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 and colour.

2In the Application, the applicant describes how she had an arrangement with the respondent to obtain subsidized childcare services through a childcare provider who worked out of her home. She booked the childcare provider on a sporadic basis. Both the applicant and the childcare provider would submit to the respondent on a monthly basis their records of which days childcare was booked and received. This is so that the respondent would know how much to pay the childcare provider each month.

3The respondent charged the applicant $31 for a day of childcare services in November 2011 which the applicant alleges should not have been charged. The respondent claimed that the applicant had booked the day with the childcare provider, but never appeared at the provider’s home on that day. The respondent has a policy to charge a parent who does not cancel in a timely way.

4The applicant told the respondent’s staff that she never booked that day with the childcare provider, and therefore the applicant should not have been penalized for not bringing her child to the childcare provider that day. The applicant referred to her own calendar of November 2011 which indicated that no day had been booked and missed. The respondent’s staff preferred the record of the childcare provider who indicated on her calendar that the applicant had booked the day, but did not attend.

5The applicant alleges that she repeatedly contacted the respondent’s staff and tried to convince the respondent to change its position over several months. She states that the respondent’s staff, people of a different race and colour than the applicant, ignored her side of the story because of what they saw on the childcare provider’s calendar which marked the applicant as having booked the day, but not appearing. The applicant states in her Application that the respondent persistently sent her invoices, and its staff “aggressively demanded me to pay and threatened me about forwarding my file to the collection agency.” When the applicant refused to pay the respondent the money it claimed, the respondent discontinued providing childcare pursuant to its policy about parents not paying outstanding charges.

6The applicant states in her Application, “I was harassed, threaten [sic] and discriminated [against] by KCCS for being a colour person from another nationality. I am certainly sure that KCCS would never treat a Caucasian person like the way they treated me…”

7The respondent filed a Response denying the allegations of discrimination, and filed a Request for Summary Hearing on the basis that the Application has no reasonable prospect of success. The applicant responded to the Request. Her written submissions state:

The procedural and administrative error on KCCS side was used as a reason to kick my son out of their programs by closing my file, because I don’t fit into the rest of the Caucasian clients they serve. Why would any business or organization close their customer’s file for a negligible amount of $31 when [it] could simply make over $550/month from me? The file was closed exactly one year ago in March 2012 and KCCS has lost a huge amount of at least $6600 since then. KCCS staff did not worry about their business, but rather worried more about having a brown skin child speaking limited English language attend their programs. I am the only South Asian person ever to sign up to receive service and within six months, my [file] was closed for something I did not even do.

8On March 15, 2013, the Tribunal granted the respondent’s Request and noted that the applicant may be unable to prove a link between the grounds she alleges and the respondent’s actions that she describes. The Tribunal therefore directed that a summary hearing be held by teleconference to determine whether there was no reasonable prospect of success.

SUMMARY HEARING

9At the summary hearing, held on July 22, 2013, the applicant explained that the rudeness of the respondent’s staff towards her when she disputed the amount owed is the evidence that will prove that she was discriminated against because of her race and colour. It appears that the applicant’s complaint of discrimination includes the respondent’s unwillingness to change its position about the money owed rather than the respondent’s decision to initially charge her $31. The applicant explained that the respondent’s staff ignored her when she called them to complain about the respondent’s demand for the money and about how they are looking only at the childcare provider’s calendar, not hers, in their determination that she owes the respondent $31. The applicant believes that the respondent’s staff wished to take advantage of her because they perceived her as a newcomer to Canada, and therefore someone who would do what they told her to do, but she did not refer to any evidence to prove this theory.

10Also at the summary hearing, the applicant described allegedly discriminatory comments by one of the respondent’s staff. The applicant described how she telephoned the respondent and tried to convince the staff member that it would make no sense, for the sake of $31, for the respondent to lose funding for the applicant. This staff member eventually ended the phone conversation by saying, “We cannot go back and go back about the calendars… I cannot talk to you anymore because you cannot understand me.” The applicant argued that this comment was discriminatory along with that staff person’s suggestion that there may have been a misunderstanding between the applicant and the childcare provider given that neither spoke English as her first language.

11The applicant argued that the Tribunal may infer that the respondent’s staff member was impatient with the perceived inability of the applicant to understand or to speak English fluently. I noted that I had absolutely no difficulty understanding the applicant, and the applicant appeared to have no difficulty understanding me or the respondent’s counsel at the Summary Hearing. When I asked the applicant if her English was much different back when she spoke with the respondent’s staff person, she said that it was essentially the same. The applicant agreed that she could not be positive that the comment made by the respondent’s staff member referred to the applicant’s incomprehension of the English language as opposed to her incomprehension of the content of the staff member’s explanations about why the respondent would not change its position that the applicant owed $31.

ANALYSIS

12Rule 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.

13In 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.

14The applicant’s position is that the respondent’s charge of $31, its attempts to collect the $31, including its staff’s conversations, and its decision to discontinue funding childcare were discriminatory. Her proposed evidence to prove her allegations of discrimination contrary to the Code is as follows:

1. some of the respondent’s staff members were rude to her, particularly by ignoring her when she contacted them to dispute the respondent’s demand for money;

2. there would be no reasonable basis for the respondent to insist she pay $31, and, as a result, to lose her as a customer if she did not, so that the Tribunal may imply that the only explanation could be the applicant’s race and colour; and

3. one of the respondent’s staff members told the applicant when she telephoned that the applicant and childcare provider may have had a communication problem because neither spoke English as her first language which may explain their different records of November, and that the applicant did not understand her and there was no point in continuing to discuss the disputed amount.

15Having read the applicant’s Application, her Reply to the respondent’s Response and her submissions, and having heard her oral submissions at the summary hearing, all of which acknowledge that there was a dispute between the applicant and the respondent about $31, I conclude that the applicant does not have evidence to support her allegations of violations of the Code even if I were to accept her version of the facts as true. I come to this conclusion noting that there could be many reasons, unrelated to the Code, for which the respondent’s staff members were rude to the applicant given that the applicant refused to pay the money the respondent thought she owed, and given that she persisted over several months in contacting staff over an amount that the applicant identified as “negligible”.

16I do not agree with the applicant that the alleged rudeness, even if true, is evidence to link the applicant’s race and colour with the respondent’s sustained attempt to collect the $31. Even if the applicant could prove that she was treated rudely, rudeness alone, while unfortunate, does not establish a reasonable prospect of success for allegations of discrimination. See Waigwe v. Easy Street Trading, 2011 HRTO 243.

17Similarly, I do not agree that the loss of funding for the applicant’s childcare is so harmful to the respondent that the Tribunal may imply that the respondent must be racist to sustain such a loss. The respondent is a non-profit organization. When the applicant stopped using its services, the respondent no longer needed to funnel any funding to the childcare provider. I fail to see how this could lead to an implication of discrimination because of race or colour.

18Finally, I address the allegation raised at the summary hearing that one of the respondent’s staff members told the applicant in a telephone conversation that the applicant did not understand the staff member. Given the context of the applicant’s refusal to accept the staff member’s repeated explanation about the calendars, it appears that this comment was nothing more than an explanation for the staff member’s refusal to go over it again. The applicant has failed to make a link between this comment and the denial of any services because of her race and colour. Even if the staff member had meant that the applicant’s English comprehension seemed to be the reason for the applicant’s inability to understand the staff member, the statement was made to explain the staff member’s decision not to continue the telephone conversation. The statement was not made to discontinue childcare or to justify collecting the disputed $31. The applicant has no reasonable prospect of using the statement to link her race and colour to the respondent’s charge of $31, its attempts to collect that amount, or its decision to discontinue service. Similarly, I see no reasonable prospect for the applicant to prove discrimination on the basis of any staff member’s suggestion that a communication problem between the applicant and the childcare provider might be the reason for the difference in their calculations of childcare days. While comments about an applicant’s fluency in English may constitute discrimination in some cases, I cannot see how it could do so in this one.

19Given the applicant’s inability to point to evidence linking her race and colour with the respondent’s charge of $31, its attempts to collect the $31 or its decision to discontinue funding childcare pursuant to a policy when the applicant refused to pay, it does not matter that the applicant states that she “is certainly sure” the respondent’s conduct is because of the grounds she cites in her Application. Without evidence, she can merely suppose. Mere supposition or belief is not sufficient for the applicant to meet the burden of proof required of her. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

20Without any evidence or the reasonable prospect that such evidence is available to her in order to link the alleged conduct of the respondent to the applicant’s race and colour, the applicant has no reasonable prospect of demonstrating that the respondent discriminated against her because of the grounds she alleges.

ORDER

21The Application is dismissed.