Sonia Chisholm v. City of Markham, Frank Scarpitti, Alan Ho and Jack Heath, 2013 HRTO 1351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sonia Chisholm Applicant

-and-

City of Markham, Frank Scarpitti, Alan Ho and Jack Heath Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: August 2, 2013

Citation: 2013 HRTO 1351

Indexed as: Chisholm v. Markham (City)

APPEARANCES

Sonia Chisholm, Applicant

Olanyi Parsons, Counsel

City of Markham, Frank Scarpitti, Alan Ho and Jack Heath, Respondents

Lisa Riegel, 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 in the provision of services because of race, colour, place of origin, gender identity and marital status. The applicant self-identifies alternatively as a Jamaican, Black Woman and an African-Canadian woman.

2At the time she filed her Application, the applicant was self-represented. Although her Application names two Councillors and the Mayor of the City of Markham (“Markham”), most of the narrative of her Application addresses her dispute with PowerStream Inc. (“PowerStream”), the local provider for hydro in Markham.

3By Case Assessment Direction, dated January 23, 2013, the Tribunal directed that a summary hearing be held. The hearing took place by conference call on July 29, 2013.

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. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The test of no reasonable prospect of success is determined by assuming the applicant’s version of the facts is 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.

6The parties are given an opportunity to make submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

7The Case Assessment Direction for this case notes that the summary hearing would address whether there is a reasonable prospect that the applicant could prove, on evidence reasonably available to her, a link between the events and the prohibited grounds alleged in her Application.

8The applicant retained counsel in advance of the summary hearing, who filed written submissions on July 16, 2013. These submissions clarify the applicant’s allegations against the three named respondents, and ask that the City of Markham be added as an organizational respondent to this Application.

9Although counsel did not bring a Request for an Order During Proceedings requesting that the Application be amended to reflect this new set of allegations, the respondents had notice of this and their counsel was prepared to deal with this issue at the outset of the summary hearing.

factual background

10The applicant resides in Markham. In the winter of 2012, she was involved in a dispute with PowerStream, which resulted in her hydro being disconnected. On April 18, 2012, a separate civil claim was issued against PowerStream.

11The respondent, Frank Scarpitti, is the Mayor of Markham. Jack Heath is a Councillor and Deputy Mayor of Markham and Alan Ho is a Councillor. The applicant separately approached all three respondents in order to get assistance with her ongoing problems with PowerStream, but alleges that all three refused to help her. The respondents, who have filed submissions (but not a Response), dispute that they refused to help her, and take the position that they advised the applicant that they did not have the jurisdiction to (i.e., could not) help her.

12The respondents states that PowerStream is an independent power producer jointly owned by the Municipalities of Barrie, Markham and Vaughan. Frank Scarpitti is one of the Board of Directors of PowerStream. It is the respondents’ position that despite the fact that Markham is a minority (34.2%) shareholder in PowerStream and Frank Scarpitti sits on the Board, “the Respondents do not have control over and do not have the authority to direct the actions of / day to day operation of PowerStream Inc. (or its employees.)”

decision and analysis

Amendment of the Application

13The respondents object to the amendment of the Application on the basis that the new allegations still did not allege a violation of the Code. Counsel for the respondents did not object to the City of Markham being named as an organizational respondent for any other reason, nor did she otherwise object to the clarified factual allegations.

14At this stage, the respondents have not filed a Response, nor has the case proceeded past the initial stage of reviewing whether the Application should be dismissed on the basis that it has no reasonable prospect of success. I will be assisted in that determination by reference to the applicant’s amended allegations, which focus on the alleged actions (or lack thereof) of the named respondents rather than the conduct of PowerStream. This Application is amended to add the allegations found in paragraphs 3-11 in the applicant’s July 16, 2013 Response to the Case Assessment Direction (subject to the caveat discussed in the next section).

15The addition of the organizational respondent does not have much impact on my analysis at this stage, but may be important at the remedy stage, should the Tribunal find, after a hearing, that the applicant’s rights under the Code have been violated. The applicant’s request to add the City of Markham as a respondent is granted.

No Reasonable Prospect of Success

16In its submissions on the summary hearing, the respondents take the position that their respective interactions with the applicant cannot constitute discrimination as they had no authority to act in the circumstances. The applicant does not accept the respondents’ assertion that they could not intervene on her behalf and wishes to have the opportunity to test any evidence in support of this assertion.

17The applicant’s counsel was asked what evidence the applicant might lead to support her theory that the respondent’s respective failures to intervene on her behalf were linked to one or more of the grounds listed in her Application. Counsel for the applicant acknowledged that there was little to support the theory that she was discriminated against on the basis that she was a woman or divorced. In the absence of any proposed evidence linking these two grounds with the allegations, they must be dismissed.

18With respect to the grounds of race, colour and place of origin, the applicant alleges that Jack Heath asked what her background was, to which she replied she was of Jamaican descent. In the summary hearing, counsel for Mr. Heath said that it will be her client’s evidence that he asked for the background to the applicant’s dispute with PowerStream, which the applicant mistakenly thought was a request for her place of origin.

19At this stage, it is not appropriate for me to make findings given that neither the applicant nor Mr. Heath has testified. If the applicant’s version is preferred after a hearing on the merits is held, it could constitute circumstantial evidence from which some inference of discrimination on the basis of race, colour and/or place of origin might be drawn.

20With respect to the two remaining individual respondents, the applicant can point to nothing linking their conduct with her race other than the two men met her in person and so were aware of her racial background. While the existence of racism has been recognized by this Tribunal and the Courts, in the absence of any other evidence the fact that it exists is insufficient to establish that race was a “factor” in the respondents’ conduct. As noted by the Tribunal in Pitter v. Toronto Transit Commission, 2012 HRTO 1412 at para. 19-20:

The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps vs. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.

The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race, colour, ancestry or place of origin. [Emphasis added.]

21Counsel for the applicant has suggested that the respondents be required to produce evidence with respect to their interaction with other constituents to see if there is any pattern of racial bias. Counsel can point to nothing to suggest this pattern exists, but speculates that it might exist. This suggested course of action can only be characterized as a fishing expedition.

22On the face of the known facts in this case, the applicant has no reasonable prospect of success of establishing that she experienced “unequal treatment” on the basis of any enumerated ground by Frank Scarpitti and Alan Ho. Her allegation that these respondents’ respective refusals to intervene on her behalf were racially motivated is nothing more than bald assertion.

23On that basis I would dismiss the Application against these two individuals as having no reasonable prospect of success. I note that above I allowed an amendment to the Application to add the allegations found in paragraphs 3-11 in the applicant’s July 16, 2013 Response to the Case Assessment Direction. To the extent that paragraph 8 describes allegations against Frank Scarpitti and Alan Ho, and in light of my decision to dismiss against these individuals, it is allowed only as general background.

order

24In sum, I make the following orders:

a. This Application is amended to include the City of Markham as a respondent;

b. This Application is amended to add the allegations found in paragraphs 3-11 in the applicant’s July 16, 2013 Response to the Case Assessment Direction. Paragraph 8 is included as general background only;

c. The grounds of gender identity and marital status are removed;

d. The Application is dismissed against the respondents Frank Scarpitti and Alan Ho.

e. The remaining respondents shall file a Response(s) to the Application within 35 days of the date of this Interim Decision in accordance with the enclosed registrar’s notice.