Sinclair v. London Public Library, 2014 HRTO 781

Human Rights Tribunal of Ontario

B E T W E E N:

Vincent Sinclair Applicant

-and-

London Public Library Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: June 2, 2014 Citation: 2014 HRTO 781 Indexed as: Sinclair v. London Public Library

APPEARANCES

Vincent Sinclair, Applicant Self-represented

London Public Library, Respondent Yola Ventresca, Counsel

1On June 12, 2013, the applicant filed an Application in which he alleged that the respondent denied him library services because of his race and/or colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant claimed that an employee of the respondent denied him library services on two occasions, once in November 2011 and once in November 2012.

2By Case Assessment Direction (“CAD”) dated August 7, 2013, the Tribunal directed, of its own motion, that the matter be scheduled for a summary hearing by teleconference. The parties were directed to address two issues in the hearing: (1) whether there is no reasonable prospect that the applicant will be able to establish a link between the respondents’ alleged conduct and the grounds of discrimination alleged in the Application and (2) whether part of the Application should be dismissed because it was not filed within the one year time frame set out in s. 34 of the Code.

3For the reasons set out below, I find, on balance, that it is appropriate to allow this Application to proceed further in the Tribunal’s process.

Applicant’s Notice of constitutional Question

4The Tribunal originally scheduled the summary hearing for February 10, 2014. On or around January 28, 2014, the applicant filed a Notice of Constitutional Question (“Notice”) in which he alleged that the Tribunal’s summary hearing process is unconstitutional. He also raised several other allegations in the Notice.

5By Interim Decision, 2014 HRTO 182, the Tribunal advised the parties that the Tribunal would hear submissions with respect to the claims set out in the applicant’s Notice at the outset of a rescheduled summary hearing.

6The summary hearing was held on May 22, 2014.

Issues Raised in Applicant’s Notice

7In his Notice of Constitutional Question, the applicant claimed that:

a. That Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) is overly broad, thus “defacto enabl[ing]” the Tribunal not to adhere to the “constitutional compliance of neutrality and equality” pursuant to s. 15 of the Canadian Charter of Rights and Freedoms (“Charter”).

b. That the Tribunal engaged in “constitutional nullification” by “strip[ping] the complainant of all Charter protection guarantees”

8He listed the following three issues as issues to be raised at the hearing:

a. Whether Rule 19A is in conflict with s. 15(1) of the Charter and therefore unconstitutional;

b. Whether the Tribunal engaged in conspiracy to cover up incriminating evidence; and

c. Whether the Tribunal “aid[ed] and abet[ed]” racial profiling including systemic racism.

9I note that the applicant’s submissions with respect to the above issues were not limited to constitutional arguments but instead combined constitutional arguments with arguments that could be characterized as “procedural fairness” arguments.

Applicant’s Submissions

10At the hearing, the applicant submitted that Rule 19A of the Tribunal’s Rules, the Rule relating to summary hearings, is overly broad and void for vagueness. He also argued that the Rule is a “frontal assault” on s. 15 of the Charter and cannot be justified under s. 1 of the Charter. He argued that, even if the Rule is constitutional, that Vice Chair Eyolfson misapplied the Rule in the CAD in this case. According to the applicant, it was an error for Vice Chair Eyolfson to cite the Dabic case in the CAD, as the facts of that case bear no relationship to the facts of the present case.

11The applicant’s main submission appeared to be that Rule 19A and/or the Dabic case, conflict with the test for discrimination set out in Ontario Human Rights Commission v. Simpson-Sears Ltd. (“O’Malley”), 1985 CanLII 18 (SCC), [1985] 2 SCR 536. The applicant argued that, pursuant to O’Malley, the onus on an applicant is to make out a prima facie case of discrimination. If the applicant satisfies this onus, the burden shifts to the respondent to justify their impugned actions. The applicant claimed that Rule 19A, as applied in this case, is inconsistent with this analysis, as it provides the Tribunal with the power to dismiss applications where an applicant has made out a prima facie case of discrimination. The applicant claimed that he has made out a prima facie case of discrimination in his Application and therefore it is improper for the Tribunal to dismiss his Application without a hearing in which the respondent would have the burden of justifying their impugned conduct. The applicant claimed that the Tribunal abused its discretion in this case by taking sides in directing a summary hearing of its own motion. According to the applicant, by doing so, the Tribunal acted with “willful blindness” to the constitutional rights of black people.

12In addition, the applicant claimed that the Tribunal engaged in a conspiracy to cover up evidence. In support of this contention, the applicant pointed to an e-mail from the respondent’s counsel to the Tribunal’s Registrar which stated:

Further to my recent telephone conversation with Ms. Simmons this afternoon, I confirm a letter has been sent by way of regular mail to today’s date to the applicant, c/o Lorna Clark, regarding that we have been retained by the respondent, London Public Library.

13The applicant claimed that Ms. Simmons, who is the Case Processing Officer assigned to this file, was engaged in covering up evidence. The applicant filed a request with the Tribunal under the Freedom of Information and Protection of Privacy Act (“FOI request”) in which he sought, among other documents, a transcript of the conversation between Ms. Simmons and the respondent’s counsel, an operation manual relating to summary hearings and various employment records relating to Vice-chair Eyolfson. The Tribunal denied these requests, the applicant appealed to the Information and Privacy Commissioner of Ontario and his appeal was denied. The applicant claims that the treatment of his FOI request by the Tribunal and the Information and Privacy Commissioner is further evidence of a “collective abuse of power” and an attempt to deny him “substantive due process” and equal benefit of the law.

14The respondent did not make submissions with respect to the issues raised in the applicant’s Notice.

Findings Re. Issues Raised in Notice

15The applicant’s challenge to the constitutionality of Rule 19A is denied as are his arguments based on procedural fairness, lack of neutrality, conspiracy to cover up evidence and aiding and abetting racism.

16The applicant has failed to show that Rule 19A discriminates based on any of the grounds protected under s. 15 of the Charter. He appeared to submit that Rule 19A discriminates on the ground of race by denying him as a black person the right to proceed to a merits hearing. I do not agree that Rule 19A has a differential effect based on race. Any application that is dismissed following a summary hearing is dismissed because the Tribunal has found that the application has no reasonable prospect of success. That is, the dismissal has no connection to the applicant’s personal characteristics but instead arises directly from an applicant’s inability to satisfy the Tribunal that his or her Application has a reasonable prospect of success. For these reasons, I dismiss the applicant’s claim that Rule 19A violates s.15 of the Charter.

17I also disagree that Rule 19A is inconsistent with the test for discrimination set out by the Supreme Court of Canada in O’Malley. The Tribunal has previously discussed at length the relationship between the prima facie case and no reasonable prospect of success tests in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”). I will not repeat that analysis here. I will limit myself to specifically addressing the applicant’s submissions in this case.

18In O’Malley, the Supreme Court defined a prima facie case as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the applicant's favour in the absence of an answer from the respondent.” More recently, the Supreme Court, in Moore v. British Columbia (Education), 2012 SCC 61 (“Moore”), specified the elements required to make out a prima facie case of discrimination:

… to demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. [emphasis added]

19I note the highlighted portion above: that is, that an applicant must be in a position to establish that “the protected characteristic was a factor in the adverse impact”. In my view, Rule 19A is not inconsistent with the discrimination analysis set out in cases such as O’Malley and Moore. Rule 19A simply provides the Tribunal with the power to dismiss an application where it determines that there is no reasonable prospect that an applicant will be able to establish a link between a protected characteristic and an alleged adverse impact.

20I disagree with the applicant’s claim that Rule 19A is impermissibly vague and overly broad – two claims that he failed to particularize in any event. Instead, Rule 19A is one tool used by the Tribunal to ensure that it resolves applications in a fair and proportionate way. The Tribunal discussed its power and obligation to resolve applications in a principled, practical and proportionate way in Pellerin at paras. 13 and 14:

The Code and the Tribunal Rules of Procedure require the Tribunal to apply its expertise in the resolution of human rights disputes in a manner that is principled, practical, proportionate and adapted to the dispute before it. The Code directs the Tribunal, in s. 41, to adopt procedures and practices that offer the best opportunity for a “fair, just and expeditious resolution of the merits of the matters before it” and this principle guides the interpretation of the Rules (Rule 1.1). The Tribunal is specifically empowered to adopt practices or procedures “that are alternatives to traditional adjudicative or adversarial procedures” (s. 43(3)(a) and Rule 1.6). In particular, the Tribunal is empowered to define and narrow the issues and to determine the order in which the issues and evidence will be presented (s. 43(3)(b) and Rule 1.7 (g) and (h)).

These provisions, in my view, instruct the Tribunal not to be formalistic about the order or extent to which evidence is called. They invite the Tribunal to apply its knowledge of human rights law and the types of disputes that come before it to decide what evidence it needs to hear in order to resolve a dispute, in particular one in which the connection to the Code seems weak. They require the Tribunal to balance the principles discussed above. They suggest tailoring the procedure in a particular case to ensure that the applicant has a fair and appropriate opportunity, given the facts of the case, to obtain and present evidence that might prove, on a balance of probabilities, a link between a respondent’s actions and the Code through disclosure or cross-examination. At the same time, in my view, the process must be structured so that the making of a bald allegation or a mere unfounded suspicion does not place inappropriate burdens on respondents, and so that an application or hearing is terminated when it is clear that there is no reasonable prospect an applicant can prove his or her allegations.

21The Tribunal’s summary hearing process is one way in which the Tribunal ensures a proportionate and fair approach to the handling of applications filed under the Code. I note parenthetically that the Supreme Court has affirmed the importance of proportionality in legal proceedings in a case dealing with the summary judgment rule under the Rules of Civil Procedure: see Hryniak v. Mauldin, 2014 SCC 7.

22I also find that there is no basis for the applicant’s claim that Vice-chair Eyolfson misapplied Rule 19A in the CAD in this case. As noted above, the applicant claimed that the Vice-chair improperly cited the Dabic case in the CAD. He argued that the facts of Dabic were distinguishable from this case. I find there was nothing improper about citing the Dabic case. The CAD sent by Vice-chair Eyolfson is the standard CAD that the Tribunal uses to direct summary hearings. That standard CAD quotes the test applied under Rule 19A which was first set down by the Tribunal in Dabic. The reference to Dabic is not a reference to the facts of that case but instead to the Tribunal’s enunciation of the legal principles to be applied under Rule 19A. Therefore, there is no basis for the applicant’s contention that vice-chair Eyolfson misapplied Rule 19A in this case.

23Finally, I find no basis for the applicant’s claim that the Tribunal covered up evidence or that there is any reasonable apprehension of bias or lack of neutrality in this case. The applicant’s claims in this respect were quite extraordinary, to say the least. The applicant argued that the fact that the Case Processing Officer (“CPO”) assigned to this case had a telephone conversation with the respondent’s counsel provides evidence of an attempt, or possible attempt, to cover up evidence. I note that another e-mail, dated January 28, 2014, in the file refers to a conversation between the CPO and/or the Tribunal’s Registrar and the applicant. There is no basis to suggest that these telephone communications, either with the respondent or the applicant, demonstrate any improper conduct. The Tribunal’s Registrar and CPOs have absolutely no input into the Tribunal’s decision-making process. Their role is purely administrative. In carrying out this role, they often communicate with parties over the telephone in order to ensure the proper administrative processing of materials filed with the Tribunal. Such communications do not give rise to any reasonable apprehension of bias or tampering with evidence.

24For the reasons set out above, the constitutional and procedural fairness challenges set out in the applicant’s Notice are dismissed. As I have dismissed these challenges, I now go on to determine the issues set out in the Tribunal’s CAD which were addressed in the summary hearing.

summary hearing

Background to Summary Hearing process

25Rule 19A directs the Tribunal to determine whether the Application has no reasonable prospect of success. At paras. 7-9 of Dabic, the Tribunal provided the following guidance:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

26The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment based on one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

27The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this 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.

28However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if the applicant is able to point to any evidence to support the applicant’s belief that he or she has experienced discrimination under the Code.

29As the Tribunal has indicated in numerous decisions, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and bald allegations to believe that an applicant could show discrimination or reprisal under the Code.

30Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Allegations Contained in Application

31The Application alleges discrimination because of race and/or colour arising from two incidents. The two incidents are the following:

a. On November 21, 2011, an employee of the respondent named “Pat” gave the applicant a copy of a Landlord Tenant Manual. She then took it back from the applicant saying that he was not entitled to look at the book without a valid library card.

b. On November 12, 2012, the applicant requested that another employee print a copy of the Freedom of Information and Protection of Privacy Act for him. The same employee involved with the November 2011 incident, Pat, told the other employee not to print out the Act for the applicant.

Whether Application Has No Reasonable Prospect of Success

32In the summary hearing, I asked the applicant what evidence he intended to advance in a hearing to establish a link between the respondent’s alleged actions and his race and/or colour. The applicant claimed that he had been subject to systemic racism by the respondent since 1997. He indicated that he intended to rely upon documents he received from the respondent pursuant to a FOI request. He claimed that Ms. Rosemary Townsend was contemptuous of him in correspondence he received in response to his FOI request.

33In an affidavit filed in support of his Notice of Constitutional Question, the applicant quotes from this correspondence. Below is a summary of the correspondence quoted in the applicant’s affidavit:

a. Correspondence from an employee, R.T., to Circulation dated 4/8/2008 that advises staff that if the applicant asks about his account, they should tell him to speak to her or “Mary”. The correspondence goes on to say that the applicant has had his library charges explained to him in detail and there is no point in going over them with him again. The correspondence ends by saying that if the applicant indicated that he wished to pay off his account, staff should go ahead and accept his money.

b. Correspondence from R. T. to three other employees of the respondent dated 9/14/2005 stating that the applicant was in the previous night complaining about an incident “in his usual manner – very loud and disruptive”. The note says that the applicant went through security gate holding materials up in the air. In the note, Ms. Townsend said she was sure that “it was to provoke”. She goes on to say that the applicant ended up coming back to the circulation desk yelling and claiming that he was being harassed because he is black. The note goes on to say that the materials were eventually signed out and the applicant left.

c. A document dated April 16, 1997 that refers to a situation involving the applicant becoming inflamed and that a commissionaire was called to sit in the hallway.

34In addition to this correspondence, the applicant filed with his Application an Incident Report he received from the respondent which relates to the November 21, 2011 incident set out in the Application. Among other things, the Incident Report states that Pat asked for the applicant’s library card, gave him the book he requested and then checked his card. Upon checking his card, she discovered it had expired and that the applicant had unpaid fines. According to the Incident Report, Pat then told the applicant he would have to go to the circulation desk to get his card updated in order to use the book. The Incident Report states that one of the respondent’s employees offered to let the applicant sit by the Help Desk to consult the book but he did not want to do that. The Incident Report notes that the applicant asked to see the Operational Manual and that Pat initially could not find it. The Incident Report states that when she found a Frequently Asked Questions document and brought it to the applicant he was dissatisfied because she had not carried out the procedure exactly as written.

35The Incident Report also contains a section describing follow-up actions allegedly taken by the respondent’s management/administration. It states that a library employee contacted the applicant to explain that the book he was using did require a library card in good standing or approved identification. The Report states that the employee told the applicant that Pat made an error in not checking the item out to his card in his presence so that she could immediately tell him that he had fines owing. The Report states that, when an employee went over the lending and circulation policy with the applicant, he swore and said F off and that he was going to file a human rights complaint.

36The applicant indicated that the fact that the same employee, Pat, was involved in both incidents establishes a link between the respondent’s actions and his race and/or colour. The applicant also stated that no one offered to let him consult the book next to the Help Desk. He claimed that the respondent’s explanation to him that the book was a high volume book was just an “excuse” to cover up racism against him. He also denied using the F word and suggested that the claim that he did use the F word played to discriminatory stereotypes.

37When I asked the applicant what evidence he intended to advance in a hearing to establish a link between the November 2012 incident and his race and/or colour, he stated Pat had told him that the respondent had issued a directive saying that circulation staff should not photocopy materials for library patrons. According to the applicant, when he asked Pat for a copy of the directive, she could not produce it.

38The applicant attributes the respondent’s conduct to discrimination. It is important to note that the burden on the applicant is higher than proving that something adverse happened to him and that he is also a person of colour. In order to make out a violation of the Code, he must demonstrate, on a balance of probabilities, that the adverse treatment occurred at least in part because of his race and/or colour.

39I note that, while the applicant takes issue with statements made about him in the correspondence he received through his FOI request, there appears to be nothing in this correspondence that could reasonably establish a link between the respondent’s actions and the applicant’s race. There also appears to be nothing in the Incident Report filed with the Application that would link the respondent’s actions in 2011 with the applicant’s race. Instead, the Incident Report supports what the applicant says the respondent’s staff told him at the time – that is, that he could not use the item due to the fact that it was a high volume book and he had outstanding fines on his card.

40With respect to the 2012 incident, the applicant pointed to the fact that the respondent’s employee, Pat, did not provide him with the directive that the staff member referred to that advised staff not to assist patrons with photocopying. The applicant also pointed to the fact that this same staff member was involved in both incidents. The respondent submitted that these factors, on their own, are insufficient to establish a link to the Code.

41I am not persuaded that the fact that the same staff member was involved in both incidents, on its own, would be enough to establish a link to the applicant’s race and/or colour. I do find that the staff member’s failure to provide the directive she referred to is a factor that could be used as evidence to establish differential treatment contrary to the Code. This factor is admittedly not much on which to establish the link to a Code ground that is required in this case. However, I am conscious of the fact that it is often difficult for applicants to make out cases of alleged racial discrimination. In such cases, the Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In the context of a summary hearing, the Tribunal is not in a position to hear or weigh evidence as it would in a hearing on the merits. On balance, I cannot dismiss the Application as having no reasonable prospect of success in the circumstances.

42In my view, it is appropriate to allow this Application to proceed further in the Tribunal’s process. Obviously, the fact that I have not concluded that this Application has no reasonable prospect of success does not in any way suggest that it will succeed. In fact, as I have noted there appears to exist little evidence to link the respondent’s alleged actions with the grounds of discrimination set out in the Application. However, in the circumstances set out above, I find that the determination of whether the applicant can make out his onus of establishing that his race and/or colour were factors in the respondent’s actions is best made by the adjudicator hearing this case once the respondent has filed a full Response and evidence has been heard.

timeliness of allegations

43Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident, or last incident, to which the application relates. There is no dispute that the November 2012 allegation in the Application is timely. The applicant argued that the November 2011 incident is timely because it forms a part of a series of incidents with the November 2012 incident. The respondent submitted that these incidents are distinct incidents as they involved different library policies or directives and were separated by a gap of more than one year.

44In order to constitute a series of incidents within the meaning of s. 34 of the Code, incidents must be thematically related and occur in close temporal order or succession. In particular, the Tribunal has determined that lengthy gaps in time between incidents in an alleged “series” will interrupt the series. The Tribunal has often found that a gap of year or more between incidents in a series will often interrupt the series. In this case, the gap between the November 2011 and November 2012 incidents is just a little over a year. In my view, the temporal gap should be viewed as one factor to be weighed against other factors relating to the thematic relationship between the two incidents. I find that the fact that the same employee was involved in both incidents is sufficient to consider both incidents as part of a series of incidents. In my view, it is not relevant that the policies or directives allegedly being applied were different in the two cases. Both alleged incidents involved services being provided to the applicant and limits placed on the provision of these services. In my view, there is a sufficient thematic connection between the two incidents to consider both of them to be timely even if there was undoubtedly a fairly lengthy period of time that elapsed between them.

45I note that at the summary hearing the applicant sought to rely upon incidents that allegedly occurred at various points over the last 17 years – that is, dating back to 1997. There is no doubt that such incidents are untimely under the Code. If the applicant wished to challenge the respondent’s conduct with respect to these incidents, he should have done so in a timely way. I find that it would be improper for the applicant to seek to challenge these alleged incidents in the context of the present Application.

Procedural Rulings

46The following are the written reasons for two procedural rulings I made during the summary hearing. At the outset of the summary hearing, the applicant objected to the fact that two representatives of the respondent were participating in the teleconference along with the respondent’s counsel. He submitted that the respondent’s counsel had not submitted any affidavits for these individuals and that they should not be permitted to testify at the summary hearing. I explained to the applicant that, as noted in the Tribunal’s CAD, I would not be hearing evidence in the summary hearing. I told the applicant that the two representatives of the respondent would not be testifying and therefore there was no obligation to submit any affidavit for them.

47The applicant then argued that they should not be permitted to participate in the teleconference as he was not given notice that they would be on the call. He submitted that it would be a sign of a reasonable apprehension of bias if I permitted the respondent’s representatives to take part in the teleconference. I ruled against the applicant’s objection on the basis that it was appropriate for the respondent’s counsel to have her clients listen in on the teleconference hearing. If the hearing had been held in person there is no doubt that representatives of the respondent would be entitled to attend. I find that the same applies to teleconference hearings such as the one in this case.

48Another issue that arose in the summary hearing related to certain cases filed by the respondent’s counsel. The applicant stated that he did not receive a copy of the cases that the respondent’s counsel intended to rely upon in the summary hearing. The respondent filed a Statement of Delivery confirming that copies of the cases were sent to the applicant by courier. I ruled that, in the circumstances, it would be unfair to permit the respondent to rely upon cases that the applicant apparently did not receive. However, I noted that it was appropriate to permit the respondent to rely upon the Dabic case which sets out principles to be applied in summary hearings since that case was cited in the Tribunal’s CAD. I also noted also that the principles governing summary hearings have been consistently applied in the Tribunal’s case law and that it is my responsibility to apply these principles in this case.

Order

49For the reasons set out above, I find as follows:

a. The constitutional and procedural fairness challenges contained in the applicant’s Notice are dismissed;

b. The Tribunal will continue to process the Application. Accordingly, the respondent is directed to file a full Response within 35 days of this Interim Decision. If the Applicant wishes to file a Reply, he must do so within 14 days of receiving the Response.