Sandra Baksh v. St. Lawrence Centre for the Arts, Beauties of Canada, and Denis Davila, 2014 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Baksh

Applicant

-and-

St. Lawrence Centre for the Arts, Beauties of Canada, and Denis Davila

Respondents

DECISION

Adjudicator: Ruth Carey Date: January 2, 2014 Citation: 2014 HRTO 1 Indexed as: Baksh v. St. Lawrence Centre for the Arts

APPEARANCES

Sandra Baksh, Applicant Self-represented

St. Lawrence Centre for the Arts, Respondent Ansuya Pachai, Counsel

Beauties of Canada and Denis Davila, Respondents Nicholas Macos, Counsel

Introduction

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 race, colour, ancestry, place of origin, ethnic origin, and disability. It involves a series of events that resulted in the applicant being refused admission to a beauty pageant.

2By Case Assessment Direction (“CAD”) dated July 4, 2013, the Tribunal scheduled this Application for a summary hearing on the basis that “it appears that the applicant may be unable to prove a link to the ground or grounds alleged”.

3The hearing took place by teleconference on October 4, 2013.

4The 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 Tribunal cannot address general allegations of unfairness unrelated to the Code. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one, or more, of these personal characteristics was a factor in the treatment the applicant experienced.

6The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondents' version of one or more of the facts.

7Accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant's belief that she has experienced discrimination.

8Support for that connection may come in a variety of forms: the timing of events; comments alleged to have been made by the respondents; comparisons with how other people were treated. These are just some examples of circumstances that can play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application will be found to have no reasonable prospect of success.

9The primary focus in the summary hearing is on the applicant's proposed 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.

10The Tribunal is also mindful of the fact that in some cases the 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.

FACTUAL BACKGROUND

11The applicant describes herself as a black woman originally from Guyana. She owns and runs a designer clothing store. Over the years she has supplied many dresses for contestants to wear in various beauty pageants.

12The respondent, Beauties of Canada (“the pageant”), holds the rights to select Canada’s representative at the international Miss Universe Pageant. Every year it holds regional pageants across the country followed by a national one to select Canada’s entrant for the international event. The personal respondent is a director of the pageant. In May of 2012, a pageant was held at a venue controlled by the respondent, St. Lawrence Centre for the Arts (“the venue”).

13The 2012 pageant attracted a great deal of international media attention because for the first time in the pageant’s history one of the contestants was a transgendered woman. She had won the right to enter the pageant with the help of an American lawyer by the name of Gloria Allred. The applicant was involved in the pageant because she provided evening gowns for some of the contestants, including the transgendered woman.

14The Application alleges that when the applicant went with an assistant to do an initial fitting of evening gowns requested by the transgendered contestant, the contestant kept them waiting, yelled at them, rejected the ordered dresses, and then deliberately damaged one of the gowns. The applicant complained to the personal respondent about the contestant’s behaviour and he told her the pageant could not get involved in disputes between suppliers and contestants.

15A few days later the applicant and her photographer attended the preliminary competition as a number of contestants were wearing gowns provided by the applicant. After the show the applicant spotted Gloria Allred giving a media interview in the lobby. The applicant had spoken to her briefly over the telephone so she approached Ms. Allred to introduce herself. According to the Application Ms. Allred then invited her to speak to the media present so the applicant started talking about how badly the transgendered contestant had behaved towards her. Both Ms. Allred and the pageant’s press officer intervened asking the applicant not to say negative things about the transgendered contestant to the press. According to an email from the applicant filed with the Application, the pageant’s press officer then asked her to leave which she did.

16The following Saturday night the applicant tried to attend the final competition of the pageant with three friends but they were refused entry. She asked a number of the employees of the pageant why she was not being allowed in as she had purchased tickets. The press officer told her it was because of her behaviour in the lobby after the preliminary competition when speaking to Ms. Allred and the media. The applicant’s companions were told they were being denied entry because they were accompanying the applicant.

17The Application says the applicant then approached security personnel at the venue to request entry and was told she was banned. One of her companions suggested they ask to speak to the manager of the venue. The applicant continued to insist on her right to enter. Eventually the manager or one of the security people told the applicant he was going to call the police. When the police arrived they spoke with someone inside the venue. One of the people who had accompanied the applicant to the event, a young black woman, was then permitted to enter. She stayed to the end of the show and collected gowns the applicant had loaned to various contestants. Although it is not in the Application, in submissions filed by the applicant in preparation for the summary hearing, the applicant alleges that either the venue or the pageant said the white photographer who was with her could enter as well to take photographs but he apparently refused to do so. The submissions also indicate that the third person who accompanied the applicant that night was a young black man. When told the police were being called he left and went to a nearby park. After the police told the applicant she was not being permitted to enter she also left.

ANALYSIS

18Although the Application listed disability as one of the grounds for the allegation of discrimination, the applicant stated during the summary hearing that was a mistake and what happened to her had nothing to do with disability. Therefore, the allegation of discrimination on the basis of disability shall be dismissed as withdrawn.

19Section 1 of the Code says:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

20The key phrase in this provision is “equal treatment … without discrimination”. In interpreting the concept of discrimination under the Code, the courts and the Tribunal have accepted that not all differences in treatment constitute discrimination under the Code. (See: for example Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at paras 77-79; and Maclean v. The Barking Frog, 2013 HRTO 630).

21As explained in the CAD dated July 4, 2013, and during the summary hearing, for this Application to have a reasonable prospect of success, the applicant must be able point to some evidence that would support the proposition that there is a link between the treatment she complains of and the remaining grounds set out in the Application. If she cannot then the Application shall be dismissed.

22The treatment complained of involves two separate but related incidents: the pageant’s press officer’s request that the applicant leave the venue after speaking negatively to the media about the transgendered contestant; and the refusal to let the applicant attend the final competition.

23With respect to the first incident, during the summary hearing I asked the applicant why she believes that her race, colour, ancestry, place of origin, or ethnic origin is connected to her being asked to leave the preliminary contest after speaking to the media about the transgendered contestant.

24The applicant argues that she was not disruptive when she spoke to the media and merely told the truth; therefore, being asked to leave must be connected to something other than her behaviour. For the purposes of a summary hearing, the Tribunal typically assumes the applicant’s version of events is true. Assuming without finding that the applicant’s behaviour was not disruptive when she spoke negatively to the media about the transgendered contestant, it does not necessarily follow that she was asked to leave by the pageant’s press officer because of her race, colour, ancestry, place of origin, or ethnic origin. That is an assumption on the applicant’s part based on speculation and does not constitute evidence. For example, there are other plausible explanations for the press officer’s behaviour; the most logical of which is that the pageant was anxious to ensure that the participation of a transgendered contestant in the pageant was a positive news story reflecting well on the pageant - which would have been a difficult challenge if the applicant’s complaints had been broadcast.

25The primary proposed evidence the applicant points to as supporting a link between her treatment and the remaining grounds in the Application is what happened on the evening of the final event of the pageant competition. In particular, she points to how her companions that evening were treated. Her white photographer was allegedly told by venue security staff he could enter to take photographs; but her black friends were not. To paraphrase the applicant’s argument, this racial sorting of her friends by the venue’s security staff, supports the proposition that the decision to prevent her from attending the final competition was linked to race or colour.

26There are a number of difficulties with this argument.

27First, the applicant’s companions are not parties to the Application. This means that whether they experienced discrimination or not is not before the Tribunal. Further, even if it is true that the venue or the pageant decided to prevent the applicant’s companions from entering because of their race or colour, this does not mean that was the reason why the applicant was not allowed in.

28Second, the supporting documents filed by the applicant for the purposes of the summary hearing indicate that the racial sorting the applicant alleges occurred was not as clear as indicated above. They state that the applicant’s black female companion was permitted to enter the venue and attend the pageant once the police arrived; her black male companion left the scene as soon as police attendance was raised as a possibility so it is uncertain if he would have been permitted to enter or not; and her white companion was explicitly told that he would be permitted entry because he was there to take photographs in a professional capacity and the applicant does not dispute that is why he was there.

29During the course of the summary hearing the applicant also stated that if it had been four white faces at the door of the venue they would not have been treated the way they were. Although I have no doubt the applicant believes this statement to be true, it is again speculation or belief and not evidence that can assist the Tribunal.

30She also states that she knows the organisation and has a lot of information where it has done stuff like this in the past. I took this to be a reference to unknown similar fact evidence. As no particulars were provided this allegation is simply too vague to constitute evidence that supports the proposition that there is a link between the respondents’ treatment of the applicant and the remaining grounds set out in the Application.

31The applicant also points to aspects of her treatment that were unnecessary and worsened the situation. For example, she states that prior to the night of the final competition no one from the pageant told her that she would not be permitted to attend the event even though she was well known to their personnel and the personal respondent had all of her contact information. She argues that if she had been told, she would have been spared the humiliation of being turned away at the venue’s door. I agree with the applicant that it would have been a good idea to inform her in advance that she would not be allowed to attend the final competition of the pageant, but even if I assume the respondents did not in fact do that, it is not evidence that supports the proposition there is a link between her treatment and the remaining grounds set out in the Application.

32Based on all of the above, I find that there is no reasonable prospect of success with respect to this Application.

DECISION

33The Application is dismissed.