Amrane v. York University, 2014 HRTO 1190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tahar Amrane Applicant

-and-

York University, Bronfman Library Respondents

A N D B E T W E E N:

Tahar Amrane Applicant

-and-

York University Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: August 8, 2014 Citation: 2014 HRTO 1190 Indexed as: Amrane v. York University

APPEARANCES

Tahar Amrane, Applicant Self-represented

York University, Respondent Joanna Rainbow, Counsel

Introduction

1These Applications allege discrimination with respect to services because of race, colour, ancestry, place of origin and ethnic origin as well as reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). One of the Applications is dismissed and the other shall proceed in the Tribunal’s process, for the reasons below.

2The Application identified by the file number 2013-15295-I was filed on August 20, 2013, and the Application identified by the file number 2014-16431-I, alleging reprisal, was filed on December 30, 2013.

background

3The applicant was a student at the respondent university. The Applications allege that when he was studying with a friend on September 18, 2012 at one of the respondent’s libraries, and using a library computer, he noticed that a librarian had come up behind his back and was writing his computer number down. He had noticed on two previous occasions that this particular librarian had watched him use library computers. The Applications allege that when the applicant asked the librarian what she was doing, she said that she was “doing it for everyone” but the applicant was not satisfied with the answer because his friend said no one had recorded her computer number. He therefore spoke to the head librarian at the site. She explained that people who are not students sometimes use the computers. He was not satisfied with her answer because he was a student with the respondent university. He complained to the head of all the respondent’s libraries who said that sometimes students use computers inappropriately. The applicant was not satisfied with this answer because he states that he was using the computer appropriately. He believes that he was singled out by the librarian because, with his darker skin and hair, he looks Semitic.

4The applicant also alleges in one of his Applications that when he pursued for several months (with various members of the respondent’s personnel) a complaint about the library incident, insisting that the librarian singled him out with no legitimate reason, the respondent reprised against him by delivering to him a letter dated January 28, 2013 which prohibited him from coming onto the campus except to attend classes or exams.

5On October 31, 2013, the Tribunal issued a Case Assessment Direction (“CAD”) indicating that the Application identified by the file number 2013-15295-I did not appear to link the event described with the grounds alleged (race, colour, ancestry, place of origin and ethnic origin), and directed that there be a summary hearing to determine whether there is no reasonable prospect for that Application to succeed. The CAD indicated that the applicant would need to point to the evidence that would link the alleged staff actions with the grounds alleged.

6On April 14, 2014, the Tribunal issued another CAD indicating that the Application alleging reprisal identified by the file number 2014-16431-I also did not appear to link the event described with the Code violation alleged, and directed that there be a summary hearing to determine whether there is no reasonable prospect for that Application to succeed. The CAD indicated that the applicant would need to point to the evidence that would link the alleged action or actions of the respondent’s employees with the grounds alleged.

7The two files were joined for the purposes of the summary hearing which was held on May 20, 2014 by teleconference.

summary hearing

8At the summary hearing, the applicant explained that he is from Algeria, and has a Mediterranean look with chestnut hair and brown eyes. He explained that he does not look Arab, but rather like a Southern Italian. He explained that on the day that the librarian copied down his computer number, everyone around him was white or Asian, as far as the applicant could see. He explained that the librarian surprised him, and that he saw her copy down the number of his computer. He did not know what she was doing prior to him coming behind his back. The applicant explained that when he asked the librarian what she was doing, she replied, “I am doing it for everyone,” and went to her office. He explained that his friend saw no librarian coming behind her back recording the number of the library computer she was using.

9With respect to reprisal, the applicant admitted at the summary hearing that he had not explicitly complained to the respondent of discrimination under the Code prior to the allegedly reprising letter from the respondent dated January 28, 2013 which placed restrictions on the applicant’s access to the campus, nor did he refer in his communications with the respondent to his race, colour, ancestry, place of origin or ethnic origin prior to that date. He did not file his first Application against the respondent or claim his rights under the Code until many months after the alleged reprisal of January 28, 2013. He argued, however, that the respondent ought to have known that his insistence to know why the librarian had copied down the number of the computer he was using on September 18, 2012 implied that he was making an allegation of discrimination under the Code.

ANALYSIS

10The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether an application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the application or part of the application will succeed.

11In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

12As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code...

13In order to establish that the Application should not be dismissed because there is no reasonable prospect that it will be successful, the applicant must show that there is evidence to support his belief that there is a connection between the staff’s alleged conduct and the prohibited grounds he has alleged. (See Rana v. Loblaws Companies Ltd., 2012 HRTO 533).

Allegation of discrimination because of race, colour, ancestry, place of origin and ethnic origin, file number 2013-15295-I

14The applicant described the librarian “surprising” him behind his back from where she recorded the number of the computer he was using. He claims that he did not see her doing this to anyone else in the library, and intends to call as a witness his friend who was also in the library with him on September 18, 2012 using a library computer, and who will testify that the librarian did not record her computer number or do to her what the librarian did to the applicant.

15At this stage in the proceedings, it is not clear what the evidence of the parties might establish in terms of whether the librarian copied down the applicant’s computer number, whether she said she was doing it for everyone, whether she copied down the number of the computer the applicant’s friend was using, and whether she copied down every computer number being used. If it is admitted or determined that the respondent’s librarian did single out the applicant and only record his computer number, that may be sufficient to raise an inference that one or more of the Code grounds alleged by the applicant were a factor in that treatment, and then the respondent must provide an explanation which may be tested by the evidence and which may or may not constitute discrimination under the Code.

16Without knowing if the librarian had recorded the number of everyone’s computer as she said she did, or if she did not, why exactly the librarian chose to write down the computer number of the applicant, I cannot find that there is no reasonable prospect of success. The circumstances as described by the applicant, if proven true, might possibly establish that the librarian dealt with him differently, that of all the people using computers in the Bronfman Library, he was the only one who was Semitic, the only one who was scrutinized, and, depending upon what the computer number was used for, the only one whose privacy was intruded upon, or the only one who was disadvantaged.

17The Application which alleges discrimination because of race, colour, ancestry, place of origin and ethnic origin and which is identified by the file number 2013-15295-I is not dismissed at this preliminary stage. The respondent must file a Response within 30 days of this Interim Decision.

Allegation of reprisal, file number 2014-16431-I

18Section 8 of the Code states:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

19Reprisal under s. 8 of the Code means that there must be an intention by the respondent to reprise for the claiming or enforcing of human rights under the Code, or for the participation in an application at the Tribunal. See Shakhnazarov v. George Brown College, 2011 HRTO 1917.

20I do not agree with the applicant’s argument that the respondent ought to have known that the applicant’s persistent communications with various members of the respondent’s employees to discover why exactly the librarian had copied down his computer number implied that he was making an allegation of discrimination under the Code. For the summary hearing, the applicant filed email messages exchanged with the respondent prior to the alleged reprising letter of January 28, 2013. Nowhere in those emails or anything else that the applicant has filed or argued does the applicant communicate to the respondent, expressly or implicitly, that the librarian behaved the way she did on September 18, 2012 because of the applicant’s race, colour, ancestry, place of origin and ethnic origin.

21In its Response, the respondent denies that it reprised against the applicant and it included documented complaints about the applicant’s behaviour from November 2012 to January 2013 which led to the restrictions being imposed upon him, in particular, his vocal outbursts and shouting profanities at staff over the disappearance of a carton of milk he said he had left unattended just beyond the turnstiles leading into the library. The Response was delivered by the Tribunal to the applicant with the instruction that if he intended to prove a version of facts different from those set out in the Response, he should include those facts in his Reply. In the applicant’s Reply, he did not dispute his behaviour, but stated that some students can bring their drinks into the library, and by virtue of the fact his drink disappeared, the respondent would not even allow that he leave his drink outside of the library.

22At the summary hearing, the applicant did not deny that there were outbursts by him which might have justified the respondent’s imposition of restrictions. But even if the applicant might establish that the respondent had unfairly prohibited him from fully accessing its campus, which I am only assuming for the purposes of the summary hearing, such alleged unfairness would not amount to reprisal as defined by section 8 of the Code. It cannot be reprisal under section 8 because at no time prior to filing the Application did the applicant raise what could be construed as a Code issue with the respondent; rather, his communications with the respondent filed by the applicant establish that he was raising issues about an infringement of his right to privacy and the inadequacy of the explanations of the librarian’s alleged misconduct breaching that right, not a right under the Code.

23With no reasonable prospect of demonstrating that the respondent knew that the applicant was claiming or enforcing human rights under the Code, or intending to initiate and participate in a process concerning those rights, there is no reasonable prospect for the applicant to demonstrate that the restrictions the respondent imposed were intended as reprisals as defined by the Code.

24Accordingly, there is no reasonable prospect for the allegation of reprisal to succeed, and the file number 2014-16431-I, alleging reprisal, is dismissed.

order

25The Application identified by file number 2013-15295-I shall proceed, and the respondent must file a Response. The Application identified by the file number 2014-16431-I, alleging reprisal, is dismissed.