HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allan VanderSpek
Applicant
-and-
RedFlagDeals.com, a division of Yellow Pages Group Inc.
Respondent
INTERIM DECISION
Adjudicator: Leslie Reaume
Indexed as: VanderSpek v. RedFlagDeals.com
APPEARANCES
Allan VanderSpek, Applicant
Self-represented
RedFlagDeals.com, a division of Yellow Pages Group Inc, Respondent
Kaley Pulfer, Counsel
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 Creed.
2As the name suggests, the respondent advertises various “deals” on a website. When the applicant accesses the website, he identifies himself, in part, by the use of a religious avatar. There is no dispute that the applicant was asked by the respondent to remove the avatar.
3By Case Assessment Direction dated April 2, 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.
4The 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.
5The 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.
6The 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 based, in whole or in part, on 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, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.
7At 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.
8The 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.
9In 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.
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.
11There is no burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success.
12The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically the applicant was asked to assist the Tribunal in understanding the connection between the respondent’s actions and the prohibited ground of creed. The respondent also made submissions in support of dismissing the Application.
13The parties agree that the applicant uses a religious avatar to identify himself when he is accessing the respondent’s services online. The parties further agree that the applicant was asked to remove the avatar. The respondent argues that the request to remove the avatar was based on a policy against political and controversial symbols or discussions on the website. The respondent argues that the policy is legitimate and applied consistently when violations of the policy are brought to the attention of the organization.
14This is a case which requires evidence to resolve. After hearing the evidence, an adjudicator may very well accept that the respondent did not engage in discrimination when the applicant was asked to remove his religious avatar. However, at this stage in the process, the Tribunal will not dispose of an application on the basis that the respondent has a viable explanation for what occurred or where it appears that the application is unlikely to succeed.
15Accepting the applicant’s allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code. The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.
Direction:
The respondent will file a Response within 35 days of the date of this Interim Decision;
The applicant will file a Reply in accordance with the Rules if necessary;
The parties are encouraged to participate in the Tribunal’s voluntary, confidential mediation process.
16I am not seized.
Dated at Toronto, this 6^th^ day of August, 2013.
“Signed By”
Leslie Reaume
Vice-chair