HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barry Dennison
Applicant
-and-
Pride Toronto
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Dennison v. Pride Toronto
APPEARANCES
Barry Dennison, Applicant
Self-represented
Pride Toronto, Respondent
Andrew Pinto and Niiti Simmonds, Counsel
Introduction
1This is an Application filed under section 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, ancestry, place of origin and ethnic origin.
2Specifically, the applicant alleges that he experienced discrimination as a result of the decision of the respondent organization to grant a marching permit for the parade held by Pride Toronto to a group called Queers Against Israeli Apartheid (“QuAIA”).
3The respondent organization filed both a Response denying it had discriminated against the applicant and a Request for Order During Proceedings seeking summary dismissal of the Application on a number of grounds. The applicant then filed a Reply and a Response to the Request for Order in which he opposed dismissal of the Application.
4In a Case Assessment Direction dated March 21, 2014, the Tribunal directed that a summary hearing teleconference be held in order to determine whether some or all of the Application should be dismissed on the basis that there was no reasonable prospect that it would succeed.
Recording of the Teleconference:
5At the outset of the teleconference hearing, the applicant indicated that he would be taping the proceedings. The Tribunal referred the parties to its Practice Direction on the issue, and in particular, to the following provision concerning self-recording and transcription:
If a party wishes to record a hearing to supplement his or her notes, he or she must get the permission of the panel and provide a copy of any recording or transcription to the other parties and the HRTO (on a USB device or CD). Such recordings or transcriptions do not form part of the HRTO's record of proceedings, including the record filed in court in respect of any application for judicial review. The recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal.
6The Tribunal permitted the applicant to self-record the proceedings, directed that he provide a copy of his recording to the respondent and to the Tribunal within one week of the conclusion of the teleconference hearing and, at the request of the respondent, drew the applicant’s attention to the permitted uses of the recording or transcription of the recording and specifically directed that they not be publicized or used for any purpose other than in the current Tribunal proceeding.
7For the reasons that follow, this Application is dismissed.
decision
8The applicant argued that by permitting QuAIA to march in the Pride Parade, the respondent discriminated against him. He argued in his materials and at the hearing that the decision to permit QuAIA to march in the Pride Parade was made by a group of people who are members of the New Democratic Party and that their decision to permit a group such as QuAIA to march was out of line with the thinking of the majority of the community the respondent organization serves and wrong.
9He alleged that the reputation of the respondent organization has suffered as a result of their taking this position, that he cannot become a member of the group and that he is prevented from volunteering with the group because of it. The applicant is not alleging that he at some point attempted to become a member of the group or a volunteer with the group and was denied this opportunity by another person or persons affiliated with Pride Toronto, but rather he himself decided he could not join or volunteer because Pride Parade had granted a marching permit to QuAIA. Accordingly, at its highest, this is an allegation of constructive rather than direct discrimination (see s. 11 of the Code).
10The respondent argued that there is no reasonable prospect that the Application will succeed because there is no service relationship between itself and the applicant and that there is no evidence that the applicant experienced differential treatment resulting in a disadvantage to him on the basis of any of the grounds he has identified as a result of Pride Toronto giving a marching permit to QuAIA.
11It also argued that this Application should be dismissed either on the basis that the substance of the issues before the Tribunal has been appropriately dealt with by a Board of Arbitration appointed under the respondent’s dispute resolution process or that it would constitute an abuse of process to permit the Application to continue to be heard. I note that the applicant was not a party to the Board of Arbitration process resulting in a decision by a panel of three members on July 9, 2012.
No Reasonable Prospect of Success:
12Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:
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 focus at the Summary Hearing into this Application was on the first branch of the test, namely, whether there is a reasonable prospect that the allegations made by the applicant, if accepted, may reasonably be found to amount to a Code violation.
14The 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. See, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
15The respondent argues that there is no service relationship between it and the applicant; that the service it provides is to groups or organizations that apply for permits to march in the annual parade.
16For the purposes of this Decision, it is unnecessary for me to make a finding on this issue. Assuming, without finding, that a social area is engaged by the allegations made in this Application (whether it is in respect of services, or in respect of employment, given the applicant’s contention that he was effectively unable to follow through in his intention to volunteer with the respondent organization), the difficulty for the analysis put forward by the applicant involves the absence of a connection to the Code grounds he has invoked.
17Even assuming all of the allegations to be true, the applicant cannot establish that he has experienced differential treatment resulting in a disadvantage to him for reasons relating to his race, ancestry, place of origin or ethnic origin. In the Application, he has left blank his responses to questions C6 and C7 which ask applicants to briefly explain why they believe they have been discriminated against on the basis of the enumerated grounds and how they identify themselves in relation to their race, ancestry, place of origin and ethnic origin.
18His pleadings and oral argument make it quite clear that the reason he believes that he cannot involve himself in a volunteer capacity with the respondent organization, involve himself more fully in its activities and believes that it is not being truly representative of the community it purports to represent is because of political views or opinions about the actions of the government of Israel expressed, not by the respondent organization, but by QuAIA, a third party group granted a marching permit by the respondent. Political opinions or views, therefore, rather than race, ancestry, place of origin or ethnic origin are at the root of the applicant’s stated difficulty with the respondent organization.
19The Tribunal has said on previous occasions that political opinions and free expression of political opinion are not proscribed grounds of discrimination under the Code (see, for example, SAIA v. Carleton University, 2013 HRTO 112). There is no basis to depart from this conclusion, and accordingly the applicant’s allegations are outside the scope of the Tribunal’s jurisdiction.
20I note further that even if the applicant had argued and established that the political opinions in dispute somehow acted as a proxy for a Code ground such as race, ancestry, place of origin, or ethnic origin – and to be clear he has not done either – his Application would still have had no reasonable prospect of success. This is because he pointed to no evidence that he himself was either directly or indirectly excluded from participation in Pride Toronto on the basis of his own political views (which, again, in and of themselves are not a protected ground under the Code); simply that Pride Toronto failed to exclude a group whose views he disagreed with.
21As such, I find that there is no reasonable prospect that the applicant will succeed in establishing that there has been an infringement of his rights under the Code.
Section 45.1 and Abuse of Process:
22Given my ruling on the issue of reasonable prospect of success, it is not necessary for me to consider the additional arguments advanced by the respondent on the issues of dismissal pursuant to section 45.1 of the Code or the applicability of the doctrine of abuse of process to the circumstances of this Application.
23The Application is dismissed.
Dated at Toronto, this 23rd day of September, 2014.
“Signed by”
Jay Sengupta
Vice-chair```