Alexandre Papouchine v. Stephen Smith, 2013 HRTO 646

Human Rights Tribunal of Ontario

B E T W E E N:

Alexandre Papouchine Applicant

-and-

Stephen Smith Respondent

DECISION

Adjudicator: David Muir Date: April 18, 2013 Citation: 2013 HRTO 646 Indexed as: Papouchine v. Smith

APPEARANCES

Alexandre Papouchine, Applicant Self-represented

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 goods, services and facilities because of ancestry, place of origin and ethnic origin.

2On February 8, 2013 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appears to be outside the Tribunal’s power to decide. The applicant was directed to respond to the issues raised in the NOID by no later than March 11, 2013. The NOID advised the applicant that a failure to respond to the NOID may be considered an abandonment of the Application and it might be dismissed for that reason.

3It appeared that the applicant had not responded to the NOID and in a Decision dated March 27, 2013 the Application was dismissed as abandoned.

4On April 2, 2013 the applicant wrote to the Tribunal and advised that he had provided submissions in response to the NOID on March 10, 2013. The Tribunal was able to confirm this information and acknowledges that due to administrative error the applicant’s submissions were not appropriately dealt with.

5Given this error, I find that it would be appropriate pursuant to section 47 of the Code and Rule 26 of the Tribunal’s Rules of Procedure that Decision 2013 HRTO 526 be reconsidered and set aside. See LeNeve v. Point Edward Casino, 2008 HRTO 392.

6In his Application the applicant has indicated that his claim of discrimination relates to his ancestry, place of origin and ethnic origin. In his narrative in response to Question 8 the following is indicated:

“I’m trying to find answer for simple question – “did Mr.Smith have licence of Auto Mechanic, does it have it now and what is it’s serial number?

This information is not confidential or private, it is regular practice in Ontario that such licences are available to public at dealerships

On my opinion ignoring request to provide such information has discrimination component on basis of grounds inside Human Rights Code.”

7As indicated earlier the Tribunal had issued a NOID. In the NOID the Tribunal described the issue for the applicant to address as follows:

The HRTO has reviewed the Application. It appears the Application is outside the HRTO’s jurisdiction because:

• a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s).

8The applicant was then directed to respond to the issue identified above.

9At this preliminary stage before the Application has been delivered to the respondent and a Response (Form 2) has been filed, the Tribunal will only dismiss an application where it is plain and obvious that it is outside its jurisdiction. With respect to this Application, in my view it is plain and obvious that the applicant’s complaint has no connection to the Code grounds of discrimination he has claimed and that it should be dismissed on this basis.

10Although this is not entirely clear from either the Application or the applicant’s submission, the applicant appears to be seeking to determine whether or not Mr. Smith holds a mechanic’s license. Again this is not clear, but it appears that the applicant was involved in some kind of litigation with Mr. Smith’s employer, an auto dealership perhaps, and Mr. Smith was a witness. The applicant is critical of Mr. Smith’s demeanour and conduct as a witness. Again, this is not entirely clear, but it appears that Mr. Smith may not have testified about whether or not he has a mechanic’s license.

11The applicant argues that he must establish a prima facie case of discrimination and agrees, that to do so, he must present facts which cover the allegations made, which if believed are sufficient to justify a decision in the applicant’s favour. The applicant argues that once a prima facie case is presented the burden then shifts to the respondent to provide an explanation.

12The applicant then cites the Tribunal’s Decision in Dabic v. Windsor Police Service, 2010 HRTO 1994. Dabic dealt with the question of whether or not an application ought to be dismissed at a summary hearing as it has no reasonable prospect of success. The essence of the Tribunal’s reasoning is captured in paragraphs 8 to 10, the latter of which the applicant relies on:

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.

13The applicant submits that the respondent must first provide a reasonable explanation. The applicant argues that once this is done, the Tribunal should then consider whether “all this was done under directions of employer of Stephen Smith or somebody else”. I observe at this point that the only respondent in this case is Stephen Smith.

14The applicant makes a number of further submissions about the level of service to be expected of a reputable company and suggests that they ought to have put the customer first. The applicant states that each person ought to be treated as “a person of noble blood” even if it is not known if that person is noble or not.

15The applicant also states he was a customer of Stephen Smith and was owed a duty to provide information. The applicant also states that his ethnic origin is easily identifiable by his last name and his place of origin because of his accent. The applicant then queries whether or not Mr. Smith provides poor customer service to everybody or does he have different standards of handling customer service.

16In my view it is plain and obvious that this Application is outside of the Tribunal’s jurisdiction. Aside from the obvious problem that it is unclear what act or inaction on the part of the respond is being complained about, it is entirely clear that the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The applicant has a question, a suspicion, and a desire to know if something the respondent did or did not do was discriminatory. The allegations at their highest amount to an assertion that the applicant is a member of a protected group and something happened to him. This is insufficient.

17The Application is dismissed.