Chester v. City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company, 2014 HRTO 318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Penny Chester

Applicant

-and-

City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 10, 2014

Citation: 2014 HRTO 318

Indexed as: Chester v. City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company

APPEARANCES

Penny Chester, Applicant

Self-represented

City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company, Respondent

Andrew Pinto, Counsel

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, ethnic origin and gender identity.

Background

2The applicant describes herself as a black woman from South America. In her Application, the applicant states that she had worked for Eastern Marine Systems ("EMS") for more than 20 years, but was about to be laid off because EMS was closing. The applicant states that she and her husband decided to open their own business selling marine parts and accessories and approached the respondent about renting a portion of the soon-to-be vacant property at 12 Leslie St. in Toronto, i.e., the property leased by EMS. The applicant states that the respondent required the applicant and her spouse to pay EMS' rent arrears as a condition of leasing the property to them. The applicant states that they objected to this condition and were advised that the condition was necessary because the applicant had been "the face of EMS". The applicant states that they formed the view that the respondent did not want to lease to black tenants. The applicant and her husband located another location for their business, but later discovered that the respondent rented the same location to Mr. Gales, a white man, who was the owner/president of EMS, despite the outstanding rent arrears.

3In its Response, the respondent states that it understood the applicant to be one of the principals of EMS and that the respondent conducted business with EMS primarily through the applicant. The respondent states that the applicant was identified as the treasurer of EMS with authority to bind the corporation. The respondent states that EMS had accumulated significant rent arrears and on April 30, 2012 EMS gave notice that it wished to terminate its lease with the respondent. The respondent confirmed that the lease would terminate on June 30, 2012, at which time the rent arrears were due.

4The respondent states that the applicant presented a business plan to the respondent on June 4, 2011, in which she proposed renting a portion of the 12 Leslie St. premises for a marine parts retail facility under the name of Eastmar Marine. The respondent was concerned that EMS was attempting to avoid paying its arrears while carrying on its business under a slightly different name. The respondent states that it therefore thought it prudent to require that EMS' arrears be paid off before the applicant's business took over the premises. The respondent notes that it did not require the applicant to pay off EMS' arrears, but that EMS pay its arrears before the applicant's business moved into 12 Leslie St.

5The respondent states that in September 2012 Mr. Gales incorporated another company, Eastern Marine Services Inc. ("EMS 2"). The respondent states that EMS paid off its rent arrears in late October 2012, and EMS 2 entered into a lease with the respondent on November 16, 2012.

Summary Hearing

6By Case Assessment Direction (“CAD”) dated September 11, 2013, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that an applicant must be able to show a link between a respondent’s alleged actions and one or more prohibited ground of discrimination. The Tribunal held the summary hearing on December 6, 2013 by teleconference.

submissions

7In her submissions, the applicant stated that she was never comfortable dealing with Mr. K., one of the respondent's representatives, who she believed did not like dealing with her. The applicant submitted that she feels he did not like dealing with her because of her colour and gender. The applicant submitted that when the respondent asked her for a business plan she felt the respondent would discriminate against her. The applicant submitted that the offer to lease to her coupled with the requirement to pay EMS' arrears was an ingenious method to put her off.

8The applicant submitted that the respondent was well aware of who the owner of EMS was and that she was not the "face" of the business. Rather, the applicant stated that she dealt with Mr. K. because Mr. Gales would ignore him. Nonetheless, the applicant stated that the respondent gave Mr. Gales free rent and gave him preferential treatment because he is a white man.

9In its submissions, the respondent reiterated that it had not required the applicant to pay EMS' arrears personally. Rather, it required that EMS pay its arrears before leasing to the applicant to ensure the applicant's business was not a scheme for EMS to carry on business under another name without paying the arrears.

10The respondent submitted that it could understand why the applicant was displeased by this requirement, but submitted that she pointed to no evidence that would link it to a prohibited ground of discrimination. The respondent submitted that the applicant's perception of differential treatment was in any event incorrect because Mr. Gales had been required to pay off EMS' arrears before the respondent would enter into a lease with EMS 2.

11In reply, the applicant submitted that, to her knowledge, EMS' rent arrears were small compared to other companies. The applicant submitted that she was not treated the same as Mr. Gales and believes Mr. Gales was given preferential treatment. The applicant submitted that disclosure of the lease arrangements between the respondent and Mr. Gales with respect to EMS 2 would demonstrate this differential treatment.

Analysis and Decision

Reasonable Prospect of Success

12Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of 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.

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 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.

14The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. 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. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

15At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

16For the most part, the applicant did not, in her submissions point to evidence that she has or has reasonably available to her linking the respondent's actions to her race, color, ethnic origin or gender. Rather, the applicant's submissions amounted to a series of bare assertions to the effect that she believed the respondent discriminated against her.

17The only evidence the applicant did point to was the respondent's lease arrangements with Mr. Gales/EMS 2, which she submitted would show differential treatment as between her and Mr. Gales. The applicant's submission is speculative, but I am mindful of the fact, as noted in Dabic, above, that evidence regarding a respondent's actions is often in the respondent's sole possession.

18In this case, both parties point to the lease arrangements between the respondent and Mr. Gales/EMS 2 in support of their respective positions. Accordingly, the most fair, just and expeditious procedure is in my view to direct the respondent to disclose the documents setting out the lease arrangements between the respondent and Mr. Gales/EMS 2, including any conditions Mr. Gales, EMS 2 or EMS were required to meet before the respondent would enter into a lease with EMS 2, as well as any documents indicating that EMS’ rent arrears were paid before the respondent entered into a lease with EMS 2. The parties shall then make written submissions about whether, in light of these documents, the Application should be dismissed because it has no reasonable prospect of success.

Order

19The Tribunal orders as follows:

1. Within 14 days of the date of this Interim Decision, the respondent shall file with the Tribunal and deliver to the applicant all documents setting out the lease arrangement between Mr. Gales/EMS 2, all documents setting out any conditions Mr. Gales, EMS or EMS 2 were required to meet before the respondent would enter into a lease with EMS 2, and all documents indicating that EMS’ rent arrears were paid before the respondent entered into a lease with EMS 2;

2. Within 14 days of receiving the documents described in paragraph 19(1), above, the applicant shall file with the Tribunal and deliver to the respondent written submissions about whether, in light of these documents, the Application should be dismissed because it has no reasonable prospect of success;

3. Within 14 days of receiving the applicant’s submissions, the respondent shall file with the Tribunal and deliver to the applicant written submissions about whether, in light of the documents described in paragraph 19(1), above, the Application should be dismissed because it has no reasonable prospect of success; and,

4. Within 14 days of receiving the respondent’s submissions, the applicant may file written submission in reply to the respondent’s submissions.

20The parties are reminded that they must maintain the confidentiality of documents disclosed in a Tribunal proceeding. Rule 3.3 of the Tribunal’s Rules of Procedure states as follows:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.