Shaikh v. Reliable Sports & Recreation Services, 2014 HRTO 929

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Salim Shaikh Applicant

-and-

Reliable Sports & Recreation Services Respondent

DECISION

Adjudicator: Mark Hart Date: June 24, 2014 Citation: 2014 HRTO 929 Indexed as: Shaikh v. Reliable Sports & Recreation Services

APPEARANCES

Mohammad Salim Shaikh, Applicant Self-represented

Reliable Sports & Recreation Services, Respondent Amajd Khan, Representative

Introduction

1This is an Application filed September 9, 2013, and completed October 11, 2013, alleging discrimination with respect to services because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application arises in the context of a recreation facility operating at the condominium where the applicant resides, and raises allegations of discriminatory treatment by the gym supervisor, Amajd Khan, who is the owner of the respondent business and has a contract to manage the recreation facility.

3By Case Assessment Direction dated October 31, 2013, this Application was referred for a summary hearing on the Tribunal’s initiative. The respondent was not required to file a formal Response to the Application, but was afforded the opportunity to file written materials in advance of the summary hearing, which he did on March 31, 2014.

4A teleconference hearing was held on April 9, 2014, and attended by the parties, at which time I heard submissions as to whether the Application has a reasonable prospect of success.

BACKGROUND

5There is a fairly lengthy history of issues alleged by the applicant and his spouse in relation to the recreation facility at their condominium complex. These allegations led to the filing of a previous Application with the Tribunal in 2010 by the applicant’s spouse. This Application ultimately was dismissed by Tribunal Decision dated March 8, 2013 (2013 HRTO 396). No allegations were raised in this previous Application pertaining to Mr. Khan.

6In the midst of this prior proceeding, the applicant wrote a letter to the condominium corporation dated September 4, 2012 raising allegations that Mr. Khan’s daughter, who worked for the respondent business, was working as a minor, that illegal, criminal and drug trafficking activities were going on in the gym when Mr. Khan’s daughter was working, and that Mr. Khan’s daughter was sleeping during her shift.

7These allegations were responded to by the condominium corporation by letter dated October 18, 2012, in which it is stated: that security had been regularly monitoring the gym and had found no evidence of drug peddling, and no such activity had been observed by management or other users of the gym or reported by any other residents except the applicant; and that Mr. Khan’s daughter is not in fact a minor.

THE ALLEGATION IN THIS PROCEEDING

8The applicant alleges that he was in the gym on September 15, 2012, when Mr. Khan came into the gym area. It is alleged that Mr. Khan came very near to the applicant and stood a few inches away, and started staring in the applicant’s eyes while taking bites from an apple. The applicant alleges that Mr. Khan had “tremendous anger and hostility in his eyes”, “with full aggression in his posture, face expressions and eyes”, and “was also making horrible noises from his mouth and nostrils”. The applicant alleges that Mr. Khan came with the intention of assaulting or attacking him, and was trying to provoke the applicant to create an opportunity to assault him. The applicant states that he left the gym, and no physical assault actually occurred.

9The applicant alleges that this amounts to discrimination against him because of disability and age, as he is an elderly man who suffers from ongoing heart disease and he believes that he was threatened by Mr. Khan because the applicant was unable to defend himself due to these characteristics.

10The applicant raised this allegation with the condominium corporation by letter dated September 18, 2012, which also was addressed in the condominium corporation’s response of October 18, 2012. The condominium corporation obtained a witness statement from a resident who was in the gym at the time, who observed Mr. Khan to be calm and not standing close to the applicant at any time. This witness also stated that Mr. Khan did not show any furious facial expressions as the applicant had described and was not aggressive in any way. This witness stated that Mr. Khan never spoke to the applicant or showed any aggression towards him, and did not tell the applicant to leave the gym. As a result, the condominium corporation found no evidence to support the applicant’s allegation of harassment and discrimination by Mr. Khan. A copy of the condominium corporation’s letter and the witness statement were filed with the Tribunal by the respondent.

11The respondent asserts that the allegation against Mr. Khan is “totally fabricated and baseless”, and that Mr. Khan has never discriminated against, harassed or threatened the applicant. The respondent states that Mr. Khan and his wife were identified as witnesses for the condominium corporation in the prior Tribunal proceeding, and alleges that since that time the applicant and his wife have been targeting and trying to intimidate Mr. Khan and his wife.

12The Application also raises an allegation that the applicant’s wife was harassed and called names by Mr. Khan and his spouse. As I pointed out to the applicant at the summary hearing, these are not allegations that any right of the applicant’s under the Code has been infringed, as opposed to a right of the applicant’s spouse, and so cannot be considered as part of the applicant’s Application.

13There also is an allegation in the Application that Mr. Khan and his spouse “started a smear campaign” against the applicant and his wife, and “started spreading false rumours and negative propaganda about [the applicant and his wife] in the gym and in [their] condominium building”. No particulars of these allegations were provided in the Application or at the summary hearing, nor was any specific allegation raised in the Application or at the summary hearing to connect these allegations to the applicant’s disability or age. Accordingly, I do and will not consider these allegations as raising any allegation of a violation of the Code by the respondent.

ANALYSIS AND DECISION

14The issue for determination at a summary hearing is whether this 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.

15Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

16Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

17The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground.

18Evidence is not heard on a summary hearing, and it is not my role at this stage of the proceeding to resolve conflicts in the evidence. As a result, while I have made reference to the condominium corporation’s response to the allegation raised by the applicant and to the respondent’s denial of discriminatory conduct, at this stage of the proceeding I need to consider the applicant’s allegation on the basis that the facts that he alleges are capable of proof at a hearing.

19By accepting the facts as alleged by the applicant as being capable of proof at a hearing, I am not, however, required to accept the applicant’s beliefs or assumptions as to why the alleged conduct occurred and I particularly am not required to accept the applicant’s allegation that the alleged conduct was due to his disability or age. The basic facts as alleged by the applicant are that Mr. Khan approached him in the gym, came close to him, bit an apple, and had an angry look on his face. I appreciate that Mr. Khan and the witness interviewed by the condominium corporation state that this never occurred. But for the purpose of this summary hearing, I am prepared to consider the applicant’s case from the perspective that this would be the applicant’s evidence at a hearing, which, if accepted over the contrary evidence, may be capable of establishing that this event occurred.

20Having said that, I do not need to accept the applicant’s belief or assumption that Mr. Khan intended to assault him or was trying to provoke an assault. That in my mind represents a significant leap from what is actually alleged to have occurred. Further, I do not need to accept the applicant’s belief or assumption that Mr. Khan engaged in this alleged conduct because of the applicant’s disability or age, as opposed to because of the complaint the applicant had made about Mr. Khan’s daughter just prior to the alleged incident or the ongoing tension arising from the prior legal proceeding. In my view, the applicant’s allegation that Mr. Khan engaged in the alleged conduct because of the applicant’s age or disability is mere speculation unsupported by any actual evidence.

21At the end of the day, in my view, the applicant is raising a bare allegation that he experienced discrimination because of his disability or age, on the basis of his own belief or assumption that he experienced such discrimination. That, as this Tribunal repeatedly has held, is not enough to satisfy the requirement at a summary hearing for an applicant to establish that he has a reasonable prospect of success at a hearing: see Visic v. Law Society of Upper Canada, 2012 HRTO 1642; Caster v. Hearthstone Communities Services Ltd., 2013 HRTO 111; Corpus v. Toronto Police Service, 2013 HRTO 1141.

22As a result, I find that the applicant has not satisfied me that the allegation raised in the Application has a reasonable prospect of success.

23Accordingly, the Application is dismissed.