Hussein Hashi v. Toronto Transit Commission, 2013 HRTO 1487

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hussein Hashi

Applicant

-and-

Toronto Transit Commission

Respondent

interim DECISION

Adjudicator: Michael Gottheil

Date: September 3, 2013

Citation: 2013 HRTO 1487

Indexed as: Hashi v. Toronto Transit Commission

APPEARANCES

Hussein Hashi, Applicant ) Jo-Ann Seamon and ) Jamie Lynne McGinnis, Counsel

Toronto Transit Commission, Respondent ) Lucy Siracco, Counsel

INTRODUCTION

1This is an Application brought under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Application alleges discrimination with respect to goods, services and facilities on the grounds of sex, age and race.

2The applicant self-identifies as an African-Canadian male, and was 19 years old at the time of the events giving rise to this Application. He alleges that on the night of October 28, 2011 he was riding on a respondent Toronto Transit Commission (TTC) bus and asked to disembark between designated stops under the respondent’s Request Stop Program (the “Program”). The operator told him that the Program was only available for female passengers and refused the request. When the applicant disembarked at the designated stop, he was assaulted and seriously injured.

3This Decision deals with an objection raised by the respondent that the applicant is attempting to change the nature and scope of his Application. The Application, as originally filed, focused on the Program. It alleged that, while the Program was previously available only to women, by October 28, 2011, it had been expanded to cover all passengers who were travelling alone between dusk and dawn and felt vulnerable, but the applicant was nonetheless denied access.

4Shortly before the hearing of the merits, the applicant advised that he was no longer claiming that the Program, or how it had been applied to him, was discriminatory. Instead he advised that the sole focus of the case was his interaction with the bus operator. He now alleges that the operator had the discretion to stop between stops under a different policy, and in refusing to do so, made conscious or unconscious assumptions about the applicant based on his age, race and gender.

5The respondent objects to what it characterizes as a completely new Application. It argues that it is seriously prejudiced and the Application should be dismissed.

6The hearing had been scheduled to proceed on July 24, 25 and 26, 2013. I heard oral argument on this preliminary issue on July 24, 2013, and then adjourned to provide the parties with my decision. For the reasons that follow, I find the proposed change in the focus of the Application does constitute an entirely different case, and this would be highly prejudicial to the respondent.

BACKGROUND

7The applicant alleges that on October 28, 2011, at approximately 10:00 p.m., he was riding the 116 Morningside bus in Scarborough on his way to visit a friend. The applicant was apprehensive about his personal safety for a number of reasons: he had recently been assaulted in the same area; Friday, October 28 was the beginning of Halloween weekend and known as “Devil’s Night”; and, as he rode the bus he saw groups of people gathered along the bus route in the area he was going to disembark. For these reasons, he wanted a special stop, rather than at one of the designated stops. Also, the intersection where he wanted to disembark was closer to where he was going, and was better lit than at the designated stops.

8The applicant alleges that as the bus was approaching his destination, he approached the bus operator and asked twice if he could have a special request stop. The first time he asked, the operator either did not hear or did not respond. The second time, the operator said the Program was only available to female passengers.

9The applicant disembarked at the next designated stop, and shortly after the bus pulled away, was assaulted by two unknown assailants. He was seriously injured, suffering cuts, bruises and a concussion. While at the hospital receiving emergency treatment, he filed a police report. His assailants have not been identified or apprehended.

10The applicant filed this Application on January 4, 2012. At that time he was represented by counsel.

11As noted above, the Application focused entirely on the respondent’s Program. The Application stated, in part:

The Toronto Transit Commission’s Request Stop program is a laudable initiative to increase the safety of TTC riders. As a program previously available only to women, Request Stop was considered a “special program” within the meaning of s. 14(1) of the Human Rights Code.

Over the past several years, the TTC has received several complaints from community groups that the program was under-inclusive, and should be made available to all potentially vulnerable persons, such as youth, the elderly, the disabled, and visible minorities. Concerns were also expressed that the program may have marginalised trans people. Statistically, males are more likely than females to be victims of the most serious forms of physical assault and to have a weapon used against them. Males are also more likely to be assaulted by strangers.

In response to community concerns, the TTC announced on October 13, 2011 that Request Stops, or Stops Between Stops, would become available to everyone.

Despite the expanded availability of Request Stops which was announced on October 13, 2011, Mr. Hashi was denied a stop on October 28, 2011 on the stated basis that the program was available only to women. As a result, he was savagely beaten and may have suffered a permanent brain injury. It is clear that the TTC did not communicate the expanded nature of the program to its drivers and operators in a timely manner. As both a young male, and a visible minority, Mr. Hashi is a member of two Code-identified groups that may be more vulnerable to violence. The expanded Request Stop program was intended to increase safety for visible minorities and young people, among others.

12The respondent filed its Response on June 5, 2012 (following the resolution of a production issue). The Response clarified that the Program was not expanded until April 2012. The respondent submitted that at the time of the alleged incident, the Program was available only to women, and was designated as a special program under the Code. As a result, it argued the Program was not discriminatory, and there was no contravention of the Code.

13The Response went on to explain that the respondent did have a policy or guideline to provide stops between stops for all passengers who identify a particular safety or accommodation need. However, the respondent submitted that there was no suggestion that the applicant had identified any such concerns or needs to the operator.

14The applicant did not file a Reply.

15A mediation was held on October 17, 2012. No settlement was reached. By letter dated November 19, 2012, counsel for the applicant indicated he was no longer retained on the matter. On February 27, 2013, the Tribunal issued a Notice of Hearing setting July 24, 25 and 26, 2013 for a hearing on the merits.

16On June 6, 2013, counsel for the respondent filed a Request for Order During Proceeding (RFOP) asking that, as the applicant had not complied with his disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules, it be permitted an extension of time to file its disclosure and witness statements. The respondent also requested the applicant confirm whether he accepted that the Program was a special program designated under the Code.

17The Tribunal issued a Case Assessment Direction advising the applicant that he must comply with his Rule 16 and 17 pre-hearing obligations, and setting a timetable for the parties to exchange documents and witness statements.

18On June 27, 2013, the Tribunal received an email from the applicant’s current counsel advising that she had been retained in the matter.

19On July 3, 2013, counsel advised that the applicant conceded that the Program was a special program under the Code, and he would not be arguing that it was discriminatory based on sex.

20On July 10, 2013, the respondent filed a further RFOP asking that, in light of the applicant’s concession, the hearing scheduled for July 24, 2013 be converted into a summary hearing, and that the Application be dismissed. In the alternative, the respondent requested an Order for, among other things, production of a number of documents related to police reports and a Criminal Injuries Compensation Board claim the applicant had made.

21On July 15, 2013, the applicant filed an RFOP seeking particulars and disclosure of documents from the respondent. It requested documents related to the respondent’s policy on “Stopping Between Stops for Other Reasons”, materials used in training bus operators on this policy, as well as materials used to inform the public of the policy. The applicant also requested more extensive witness statements from the respondent’s proposed witnesses, seeking particulars of how bus operators were trained on this policy and how they were expected to apply it in the field. In outlining the reasons for its RFOP, the applicant stated, in part:

This application involves assessing, through inferences, which can be drawn from all of the evidence, whether the Applicant’s race, colour and sex were a factors (sic) in the bus operator’s decision to decline to let the Applicant off between stops on October 28, 2011. For the Tribunal to fully and properly assess this, it must understand the Respondent’s operating procedures for it’s (sic) “Stopping Between Stops for Other Reasons” program out in the field.

The Applicant submits that the requested documents and particulars are highly relevant to the questions of how the Applicant’s race, age and sex may have been factors in the bus driver’s decision to not stop between stops. In its response, the Respondent reveals the existence of this discretionary program which could have been applied to the Applicant in this case. The Applicant is entitled to understand how bus drivers are expected to apply the “Stopping Between Stops for Other Reasons” in particular cases.

22On July 18, 2013, the applicant filed its response to the respondent’s July 10, 2013 RFOP. It stated, in part:

In its Response the TTC disclosed the existence of two separate programs for bus passengers who request a stop between stops, the applicant learned only one of the programs could be applied to his request because he was male. This program was called “Stopping Between Stops for Other Reasons” and involves the exercise of discretion about a passenger’s request to stop between stops. While his application originally challenges the “Request Stop” program for women only, in effect at that time, the applicant has now conceded that this was a special program under s. 14.

However, the applicant continues to allege that the bus operator’s treatment when he asked for a stop between stops was discriminatory based on the intersectional grounds of race, age and sex. In racial discrimination cases in particular, there is often little direct evidence available to the adjudicator. The approach is set out clearly by the Ontario Court of Appeal in the recent case of Toronto (City) Police Services v. Phipps:

There is seldom direct evidence of a subjective intention to discriminate, because “[r]acial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices” and racial discrimination “often operates on an unconscious level”….

23At the commencement of the hearing on July 24, 2013, counsel for the applicant confirmed that the applicant was not challenging the Program in any way: the applicant agreed it was a special program under the Code and did not allege it was under-inclusive or that the respondent ought to have extended its application earlier. Counsel stated that the sole allegation now being advanced was related to the bus operator: that in refusing the applicant’s request for a special stop, the operator was motivated by conscious or unconscious assumptions about the applicant’s race, age and gender. Counsel confirmed the applicant was not seeking to advance a case of systemic discrimination.

DECISION

24The respondent argues that the applicant is now putting forward a completely different case. It argues that on the eve of the hearing he is seeking to advance new and different facts, and a different allegation of discrimination: no longer about the Program, but now about racial profiling by the operator. It argues that the applicant’s change of case is unfair, contrary to its due process rights and is seriously prejudicial. The respondent argues the applicant should not be permitted to change and expand the case at this stage of the proceedings.

25For his part, the applicant disputes that he is seeking to change the case. Counsel argues that the applicant is not relying on new or additional facts, but rather is simply advancing a different “theory” of discrimination while relying upon the same facts as pleaded. In response to the claim of prejudice because of delay and fading memory, counsel argues that there is no real prejudice, since the respondent stated in its Response that the bus operator had no recollection of the interaction with the applicant, and therefore, there is no memory to fade.

26I cannot accept the applicant’s position. Notwithstanding counsel’s assertions and able argument, in my view the applicant is seeking to amend his Application. First, he is alleging new facts. Notably, he is alleging that the individual bus operator made conscious or unconscious assumptions about the applicant’s race, age and gender. Both the applicant’s July 15, 2013 RFOP and his July 18, 2013 Response to the respondent’s RFOP set out the new facts he is now relying upon. Contrary to the statement in the Response to the RFOP that “the applicant continues to allege that the bus operator’s treatment when he asked for a stop between stops was discriminatory based on the intersectional grounds of race, age and sex” (emphasis added), that allegation was not part of the original Application. Finally, the applicant is seeking documents and particulars about the “Stopping Between Stops for Other Reasons” program, and no doubt would have further factual allegations to make after receiving these documents and particulars, if I were to order production. I am satisfied that the applicant intends to rely on substantial new and different facts.

27Second, I cannot accept that this is simply a new theory of the case. The applicant is now advancing a completely different case of discrimination. The original Application focused on the respondent’s Program. While the applicant now argues that he ought to have had the opportunity to benefit from the Stopping Between Stops for other Reasons policy, he is not attacking that policy, or its general application. He is not alleging the corporate respondent has breached the Code in any way. Rather he is alleging that the individual bus operator engaged in profiling. In my view, this amounts to a request to amend the Application.

28The Tribunal has considered requests to add new facts, or to expand the scope of an application. In the leading case of Odell v. TTC, 2001 CanLII 26210 (ON HRT), the Tribunal set out four factors it should consider when addressing a request to amend an application: prejudice, fairness, conduct of the party requesting the amendment, and the effect of the proposed amendment on the hearing.

29Dealing first with the conduct of the applicant, I find that there is no bad faith or abuse of process on the applicant’s part. The applicant only recently retained his current counsel, and counsel immediately and diligently advised of the new position being advanced. However, the applicant knew as early as June 2012, at a time when he was represented by counsel, that the facts he originally relied upon did not support or articulate what he now claims to be the basis of discrimination. He did not file a Reply as permitted by the Tribunal’s Rules, nor did he indicate he disputed the facts asserted by the respondent. He did not request particulars of the “Stopping Between Stops for Other Reasons” policy, nor advise that he was alleging a different case of discrimination. He has not provided any reasons to justify the delay.

30With respect to the first and second of the Odell factors, in my view the 18-month delay in the request to amend the scope of the Application, and the wholesale shift in focus, is highly prejudicial and unfair to the respondent (and the bus operator). An application puts a respondent on notice of the case it is required to meet. Timely notice of allegations of wrongdoing is a fundamental principle of fairness. It is for this reason the Code requires an application to be commenced within one year of the incident of alleged discrimination. Similarly, section 8 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, requires that a party be provided with particulars of alleged wrongdoing in advance of a hearing.

31I cannot accept the applicant’s argument that the respondent is not prejudiced because it stated in its June 2012 Response that the bus operator had no memory of the alleged interaction with the applicant. A party is entitled to be advised at an early stage of the allegations made against it so it can make appropriate inquires and gather the necessary evidence to respond to the claim. Had the respondent known 18 months ago or even 12 months ago the nature of the case the applicant now wishes to pursue I am satisfied it would have conducted an entirely different investigation – both in questioning the operator and attempting to identify other witnesses. Those opportunities are now lost.

32Finally, allowing the amendment at this stage would require that the hearing dates scheduled be adjourned, further production exchanged, further particulars and responses filed, new witness statements prepared and new hearing dates set. This is not a situation where the case may be completed within the time allotted, or with a brief adjournment, but would essentially reset the pre-hearing and scheduling timeframes.

33I accept that the applicant felt anxious and vulnerable as he rode the bus on the evening of October 28, 2011. I also accept that he may feel perplexed as to why the bus operator did not accede to his special stop request, and wonder if his race, age and gender were factors in the bus operator’s decision that night. Further, I acknowledge the principles set out in the Court of Appeal’s decision in Phipps that, particularly in cases of racial discrimination, there may be little or no direct evidence of discrimination, that discrimination may be established through circumstantial evidence, and that discrimination may be the result of subtle conscious or unconscious assumptions about race. The issue here however, is whether it would be unfair and prejudicial to the respondent to permit what is in effect an amendment to an application, 18 months after it was filed, and almost two years after the original incident.

34In my view, in the circumstances of this case, it would be unfair to permit the applicant to change his Application from one challenging a corporate policy, to one alleging racial profiling against a single employee.

Order

35For the reasons set out above, the expansion or addition of allegations that the bus operator’s refusal to stop was based on conscious or unconscious racial stereotypes or biases is refused as untimely and prejudicial.

36As this was the sole issue, I am not prepared to make a final disposition of the Application. Within 20 days of this Decision, the applicant shall advise whether he wishes to proceed with the Application. If so, he should advise what next steps he proposes in this case. Within 10 days following the applicant’s submissions, the respondent shall advise how it proposes to proceed.