L.T. by his Litigation Guardian R.T. v. Kingsville Minor Hockey Association, 2014 HRTO 786

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

L.T. by his Litigation Guardian R.T.

Applicant

-and-

Kingsville Minor Hockey Association, Erie North Shore Minor Hockey Association, Derek Marontate, Shawn Marontate and Kevin Wright

Respondents

DECISION

Adjudicator: Paul Aterman
Date: June 3, 2014 Citation: 2014 HRTO 786 Indexed as: L.T. by his Litigation Guardian R.T. v. Kingsville Minor Hockey Association

APPEARANCES

L.T. by his Litigation Guardian R.T., Applicant

R.T., Litigation Guardian

Kingsville Minor Hockey Association, Erie North Shore Minor Hockey Association, Derek Marontate, Shawn Marontate and Kevin Wright, Respondents

Maria Kotsopoulos, Counsel

Introduction

1The applicant, represented by his father as Litigation Guardian, is a 10 year old boy who plays minor hockey. During the 2012-13 season he played for the respondent Erie North Shore Minor Hockey Association’s (ENSMHA) Atom ‘A’ Minor Travelling Team. The team is a competitive team, which means that players are selected for the team based on their abilities and are allocated time on the ice based on their performance. Decisions about selection and playing time are at the discretion of the team coaches, who volunteer their time.

2In the course of the 2012-13 season the applicant’s ice time was reduced. Later, when he tried out for the Atom ‘A’ Major Travelling Team for the following season he was not selected. This Application alleges that the decisions by the respondents to reduce the applicant’s ice time and then to exclude him from the team amount to discrimination with respect to services because of disability, family status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The respondents say that during the regular season the applicant’s ice time may have been less than some other players on the team, but that was a decision based on his performance and entirely within the discretion of the coaches. Similarly, the decision not to include him on the team for the 2013-14 season was based on his ability relative to other players and, again, was entirely within the discretion of the coaches.

4The decisions to reduce his playing time and not to include him on the team were taken by the personal respondents. The organisational respondents then upheld those decisions when they refused the applicant’s request in June 2013 that team tryouts be held again, but this time with independent evaluators brought in to conduct the tryouts.

5A summary hearing was held on May 27, 2014 to determine whether this Application has no reasonable prospect of success. I conclude that, while the applicant sincerely believes the respondents treated him unfairly, there is no reasonable prospect that the applicant could show the Code has been violated. As a result, the Application is dismissed. The reasons for this conclusion are set out below.

the allegations of discrimination and the evidence in support

6The applicant alleges that in relation to disability, his mother has epilepsy and his father has had hip surgery. A consequence of his parents’ medical conditions is that the family cannot and will not participate in what he calls the heavy drinking and partying that goes on into the night amongst the coaches and the parents of players, especially when the team travels. The family goes to bed early. The personal respondents, he says, feel ill at ease with his family’s refusal to participate in this culture. This has led to the family being isolated from the other families on the team and, in turn, to decisions by the respondent coaches to reduce his playing time and then exclude him from the team. The applicant believes that this is discrimination on the basis of disability.

7Related to this argument is the fact that the applicant’s half-sister, a daughter from his father’s previous marriage, has Down’s syndrome. The applicant says that when his family brought his sister to watch him play, some of the parents on his team would feel ill at ease in her presence because she is talkative and they did not wish to engage with her. This too causes the family to be excluded from the team culture.

8The applicant’s argument with respect to family status is related to the argument about disability. The applicant believes that “family status” under the Code includes how the personal respondents view his family’s unwillingness to be a part of the “party hard” culture of the team. In other words, he thinks that his preferences and those of his family about how they socialise with his teammates and their families are an aspect of family status.

9Similarly related is the applicant’s argument about age discrimination. The applicant’s father is 61 years old and the applicant is a son of his father’s second marriage. He thinks that perhaps the personal respondents believe that his father’s age – and their perception that the family does not fit in with the team culture - may have something to do with the decision to reduce his playing time and then exclude him. As the applicant’s father put it during the summary hearing, he is old enough to be the father of many of the hockey parents and they feel uncomfortable drinking with someone who is as old as he is.

10The applicant says that there is no direct evidence of discrimination, but that the evidence supports an inference of discrimination. The statistics related to his performance during the 2102-13 and 2013-14 seasons show that he could not possibly have had his ice time reduced because of his performance or not been selected for the team because of his abilities. The number of goals and assists he scored prove that the personal respondents’ decisions about his playing time and exclusion from the team have nothing to do with how good he is at hockey. In addition, the applicant – through his father – asserts that he is better than three quarters of the other players on the team.

11He also states that on two occasions during the 2012-13 season the team travelled to tournaments and stayed in hotels. On these two occasions the applicant and his family were assigned rooms that were on a separate floor from the rest of the team. The applicant says that this is evidence of the kind of exclusion that underlies the personal respondents’ decisions about his playing abilities. He also maintains that he was excluded from some social functions, such as sleepovers, that were organised between some team members.

12Finally, the applicant has filed numerous emails between his father and his coaches and then between his father and league officials. He maintains that the email record supports an inference that the respondents’ decisions were discriminatory.

analysis

13I assume for the purposes of this decision that the conduct complained of falls into the social area of “services”. The organisational respondents organise a sports league which is open to and for the benefit of the general public on payment of a fee. This falls within the broad definition of a service set out in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 at para. 22.

14I also assume that the applicant is relying on s.12 of the Code in relation to the allegations of discrimination on the basis of disability and age. That section prohibits discrimination against a person based on their association with a person identified by a prohibited ground of discrimination. The applicant is not disabled and he relies on the fact that his parents and sister are in order to advance his claim on this ground.

15Likewise, the Code defines “age” as “an age that is 18 years or more”. The applicant relies on his father’s age and his association with his father to advance his claim on this ground.

16The problem for the applicant in relation to the disability and age allegations is that there is no evidence in his possession or that may be reasonably available to the applicant to support his theory of discriminatory treatment. In the written submissions he filed, the applicant acknowledges that he believes that the disabilities of his family members and his father’s age were factors in the decisions to reduce his playing time and cut him from the team, but does not point to any evidence that draws a link between disability or age and the personal respondents’ decisions about his role on the team.

17The applicant says that the strongest evidence of discrimination is the fact that the statistics show he was one of the better players on the team, yet he was the one denied playing opportunities. Part of the bargain that parents and players of parents have made with the organisational respondents is that if the players are on competitive teams, the coaches have very broad discretion to decide who is selected for a team and, once selected, how much ice time they are allowed.

18Assuming that the applicant is correct in asserting that he was one of the better players, this might well be evidence that the decisions of the personal respondents were arbitrary and unfair to him. However, it is not evidence that establishes a link between the adverse treatment he suffered and any of the Code-protected grounds of disability, family status or age. It is well established that the Tribunal has no power to address general complaints of unfairness. There must be a link to the Code in order for the Tribunal to intervene. Otherwise the Tribunal has no business second-guessing the discretionary decisions of minor hockey coaches.

19The applicant states that the personal respondents started to reduce his ice time after a tournament in the United States in December of 2012. Neither of the applicant’s parents could attend this tournament because his father underwent hip surgery at that time. He states that it was during this tournament that the decision was taken by the personal respondents to gradually marginalise the applicant. Absent any supporting evidence, the simple fact that these two events may have coincided in time does not allow me to draw an inference that they are linked.

20In the pleadings the applicant acknowledges that none of the respondents were aware of the fact that the applicant’s mother has epilepsy until the applicant’s father disclosed this to a league official in May of 2013, shortly before the tryouts that led to the applicant being cut from the team. The applicant’s theory is that he began to be excluded through a reduction of his ice time, that this started in January of 2013 and that the personal respondents had made their decision about his playing future by then. If the respondents knew nothing of the mother’s disability at that time, then it cannot have been a factor in that decision.

21As to the applicant’s sister’s disability and his father’s age as factors in the personal respondents’ decision, the applicant relies on belief alone. He has not shown that there is any evidence he has or could obtain that would support his belief that these were factors in decisions to reduce his playing time or not select him for the 2013-14 season.

22“Family status” is defined in the Code as “the status of being in a parent and child relationship”. Even if I assume that the respondents actually perceived the applicant’s family as not fitting in with the team culture and set about to exclude the applicant from the team in order to avoid having to deal with his family, it does not follow from this that they are discriminating on the basis of family status.

23It is not the applicant’s status as a son that is connected to this allegedly adverse treatment. Rather, the treatment flows from the fact that his parents have a preference not to be involved in what is claimed to be a culture of heavy drinking among hockey parents. There may be a conflict or a difference of views between the parties about what forms of socialising are appropriate for parents and players on a minor hockey team, but this does not elevate that difference over lifestyle choices into a dispute that engages the Code.

24The dynamics between participants in sports and social activities can be complex. Not everyone fits in all of the time. Some people may feel –rightly or wrongly – that they have been left out of the inner circle, but that does not mean that discrimination has occurred. Here the alleged adverse treatment may be arbitrary and unfair, but I have concluded that there is no evidence that links or establishes that the alleged conduct is connected to a Code-protected ground.

order

25The Application is dismissed.