Jun Chen v. Human Rights Legal Support Centre, 2014 HRTO 59

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jun Chen

Applicant

-and-

Human Rights Legal Support Centre

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: January 15, 2014

Citation: 2014 HRTO 59

Indexed as: Chen v. Human Rights Legal Support Centre

APPEARANCES

Jun Chen, Applicant

Self-represented

Human Rights Legal Support Centre, Respondent

Toby Young, Counsel

Introduction

1This Application was filed on June 18, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was discriminated against in the receipt of services because of race.

2By Case Assessment Direction dated July 4, 2013 (the “CAD”), the Tribunal on its own initiative determined that a summary hearing would be held to hear the parties’ submissions on whether the Application has a reasonable prospect of success. The summary hearing was held by teleconference on October 25, 2013.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The issue that Rule 19A requires the Tribunal to determine is whether an Application, in whole or in part, has no reasonable prospect of success. In order to establish an Application has a reasonable prospect of success, an applicant must point to evidence that he has or reasonably is expected to have that establishes a link between the act that is complained about and a prohibited ground of discrimination. In some cases, an applicant must establish that the allegations reasonably amount to a Code violation in law.

4If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

5An applicant is not required to prove his case at a summary hearing, although he may be asked to point to the evidence that he has or expects to have to establish his complaint of discrimination. On the basis of the submissions by the parties, the Tribunal examines the allegations set out in an application and determines whether or not it should move ahead in the hearing process or be dismissed at the summary hearing stage.

6The Tribunal is not empowered to remedy general allegations of unfairness. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. The issue in this case is whether on the facts set out in the Application, the applicant can draw a link between his complaints and his race.

7An interpreter was provided to the applicant at the summary hearing. The applicant was given an opportunity to make submissions to assist the Tribunal in understanding the connection between the applicant’s complaint and his race. The respondent made submissions in support of dismissing the Application.

ANALYSIS

Background

8The applicant filed a separate Application with the Tribunal alleging discrimination and harassment in employment. A mediation on this Application was scheduled at the Tribunal for June 12, 2013.

9On May 22, 2013, the applicant spoke to a staff lawyer at the Human Rights Legal Support Centre (“the Centre”) about his case. The Centre provided an interpreter for the telephone interview. Technical problems occurred during the call and the line for the interpreter was dropped. The applicant elected to continue the interview in English.

10The applicant alleges that the staff lawyer advised him that his case was not a discrimination case. The applicant was unhappy with this advice and the staff lawyer agreed to review the case with her Team Lead.

11The applicant met with the staff lawyer again on June 10, 2013. An interpreter was provided for the duration of this meeting. The applicant alleges that the staff lawyer advised the applicant that her team did not believe his case was a discrimination case. The applicant asserts the staff at the Centre believed he did not understand discrimination because he is an immigrant.

12The Centre declined to represent the applicant at the mediation. The Centre states it made this decision because of the evidentiary issues facing the applicant in proving his case. The applicant alleges that the Centre promised to arrange an interpreter for the mediation. The Centre denies that it made this promise.

13The mediation proceeded at the Tribunal. The applicant settled his case for less than he had requested. The applicant states that the Centre’s view that his case was not one of discrimination impacted him during the mediation because he had no “standpoint” to request his deserved compensation. The applicant believes that because he got a settlement from his former employer at the mediation, his case obviously had merit.

14The applicant submits the Centre has no right to determine the merits of a case, as that is the role of the Tribunal.

analysis

15The Tribunal’s jurisprudence is clear that a failure to represent a party in a human rights case is not, in and of itself, a breach of the Code. In order to establish a claim of discrimination, an applicant must provide a factual foundation in the Application that the failure to take on the case was based, in part, on prohibited ground of discrimination. See Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025.

16There are no facts alleged in the Application that suggest the applicant’s race was a factor in the Centre’s decision not to represent him at the mediation. The applicant alleges that because he is an immigrant, the Centre did not believe that he understood the concept of discrimination. Even accepting this allegation to be true, this fact was not relied upon by the Centre in making its decision not to represent the applicant at the mediation. The applicant states the Centre made its decision because it did not believe the applicant had a discrimination case. In large part, the Centre does not contest the applicant’s assertion. It states it made the decision because the applicant did not have evidence to prove his case. There is little difference between not having a case and not being able to prove a case. The decision not to represent the applicant on this basis is not discriminatory.

17The applicant submits the Centre was under a legal obligation to represent him. He is incorrect in that assertion. The Centre is not under a legal obligation to represent applicants at mediations or hearings. This is made clear on the Centre’s website:

Legal services, including representation, are provided on a stage-by-stage basis – for settlement negotiations, for filing, for mediation and for the hearing. This allows us to match the level and extent of service at each stage to a number of factors including the needs of the individual, the merits of the claim and the complexity of the evidentiary and legal issues.

18In this case, the Centre did provide the applicant with legal services. It gave him an opinion on the merits of his case and his ability to prove it.

19The applicant did not receive adverse treatment as a result of the Centre’s opinion. He was able to attend the mediation with an opinion about his case that allowed him to make an informed decision about settlement. The applicant had every right to disagree with the Centre’s opinion. The fact that the applicant received a settlement at the mediation does not mean the Centre was wrong. There are many reasons why cases settle at mediation.

20Finally, the applicant alleges that the Centre agreed to provide an interpreter at the mediation. The Centre denies that this promise was made.

21The provision of an interpreter at a mediation is a service provided by the Tribunal as an accommodation measure. The Centre does not provide interpreters at mediations. Although the applicant may have believed the Centre would provide this service, his request should have been made to the Tribunal. The Centre cannot be found to have discriminated against the applicant for a service that it does not provide. As such, this allegation as no reasonable prospect of success.

22The applicant has failed to establish a link between the Centre’s decision not to represent him at the mediation and his race. The applicant concedes that the Centre’s decision was based on its opinion the applicant would be unable to prove his case. A decision on this basis is not discriminatory. As such, the Application is dismissed as having no reasonable prospect of success.

ORDER

23The Application is dismissed.