HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Eric Brazau
Applicant
-and-
Extreme Fitness
Respondent
DECISION
Adjudicator: Naomi Overend
Indexed as: Brazau v. Extreme Fitness
APPEARANCES
Eric Brazau, Applicant
Self-represented
Extreme Fitness, Respondent
Paula Dow, Self-represented
introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 17, 2012. The Tribunal issued a Case Assessment Direction on August 2, 2012, indicating that it would hold a summary hearing by teleconference to determine whether all or part of the Application should be dismissed as having no reasonable prospect of success.
2The initial summary hearing took place, but the applicant did not attend on the call as he had been incarcerated. The Tribunal, unaware of the reason for the applicant’s non-attendance, dismissed the Application as abandoned. This decision was reversed on reconsideration and a second summary hearing was held by conference call on September 27, 2013.
3Prior to the summary hearing, the respondent’s former counsel wrote a letter to the applicant, which was copied to the Tribunal, to advise that the respondent had ceased carrying on any active business, was granted protection by order of the Superior Court of Justice (Commercial List) under the Company Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCRA”) and had sold its assets (by order of the Court) to another fitness organization.
4In this same letter, the former counsel advised that not only was she not attending the upcoming summary hearing, but she did not expect anyone from the respondent to attend. However, a former employee of the respondent participated in the conference call, although it was not clear by what authority she acted.
5The applicant indicated at the outset of the summary hearing that he wished to continue his Application, that despite the likelihood that he would not receive financial compensation in the event that he was successful, he was seeking a declaration with respect to what he alleged was the violation of his rights. It was on that basis that the summary hearing took place.
Decision and analysis
6The 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.
7The 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.
8The parties are given an opportunity to make submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.
9The Case Assessment Direction for this case notes that the summary hearing would address whether the applicant’s allegations might be reasonably considered to amount to a violation of the Code, assuming the facts as alleged to be true.
10The applicant self-identifies as a Christian. In his Application, he states that he believes he experienced discrimination on the basis of his creed because he “spoke of Christianity as the religion of peace.” Specifically, what he describes in his Application is as follows:
He would speak to other members of the respondent’s fitness facility about his belief that the “new Testament as the word of Jesus is true peace as opposed to killing & amputating or beheading in the Koran.”
According to the applicant, this would make the other members “agitated towards him” and one of the members had told him to “stop talking.” When the applicant asked the membership manager on “several occasions” to intervene, this person said there was nothing he could do.
At the end of February 2012, he was in the sauna, and was asked by an acquaintance whether there was anything “new and exciting” to which he responded that he had read a book for “the Muslim couple.” He further elaborated that this book advocated men beating their wives. A third member identified himself as a Muslim and questioned the applicant’s motives for speaking. A fourth member who overheard this conversation went to complain to management about the applicant.
As the applicant was leaving, the manager “lectured him on the inappropriateness to speaking about Islam.” The manager then said that the member who was Muslim was right for attempting to correct the applicant, to which the applicant responded “What about the Christian truth?”
The following day, the applicant’s membership in the respondent at that location was cancelled, and he was barred from attending another location after the cancellation.
11The applicant supplemented this factual record at the summary hearing, by alleging that his discussions would take place in the locker room, often in response to someone asking him what was new. During one of these conversations he states that he compared letting in Muslims to Canada to letting in the Nazis.
12The respondent, Extreme Fitness, was advised that it was not necessary to file a Response, and so the Tribunal has no written record of its position on the facts. Ms. Dow, who advised that she had some knowledge of the events as a former employee of the respondent, said that she did not fully agree with the applicant’s version of events.
13As I explained to the parties, it was not necessary for me to hear and weigh the evidence in determining at the summary hearing stage whether the applicant’s allegations might be reasonably considered to amount to a violation of the Code. For the purpose of rendering a decision on this question, I am assuming the applicant’s factual allegations (although not necessarily his interpretation of those facts) to be true.
14The first thing I would note is that the applicant refers to the “new testament teachings of Christ” and the “Christian truth” as the foundation of his creed. However, he makes it clear that his comments on Christianity were not the basis for the respondent’s decision to not support him and, eventually, to cancel his membership. Rather it was his comments on another creed – namely Islam – that he states made people agitated and, eventually, complain about him.
15The applicant does not state that a tenet of his Christianity is that he must proselytize against Islam. However, it would appear from his submissions that that he conflates his anti-Islamic beliefs and thoughts with his beliefs in the teachings of the New Testament, whether or not there is a theological basis for so doing.
16That does not end the inquiry, however. In his Application, the applicant states: “I was dealt with harshly for speaking my thoughts. More Ironic is I expressed my thoughts to a person who asked for them.” The applicant acknowledges that he was not just expressing his thoughts privately to another individual, but that he was openly and publicly speaking for anyone who could overhear him. Indeed, given his willingness to expound his views at the slightest expression of interest in “anything new,” it seemed that the point was to broadcast his views.
17On the applicant’s own allegations, there were people who were offended by his views, including people who practised the religion he made a point of attacking. The respondent had a responsibility to ensure that everyone who used its facilities was able to do so without being subject to a poisoned environment. That is, it had a positive obligation to ensure its clients, whatever their creed, did not have their Code rights violated by another staff member or client.
18Again, on the applicant’s own version of events, the respondent was not discriminating against him on the basis of his creed, but ensuring that he did not continue to poison the service environment for its other clients. The respondent did not prohibit him from attending because he held these views, or practised this religion, but because of his insistence on imposing these views on other clients even when asked not to. The Code does not give persons an unfettered right to express their thoughts.
19Accordingly, this Application has no reasonable prospect of success and is dismissed.
Dated at Toronto, this 6th day of December, 2013.
“Signed by”
Naomi Overend
Associate Chair (Acting)