Jay Csanady v. Ottawa City Street Café Ltd., 2014 HRTO 997

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jay Csanady

Applicant

-and-

Ottawa City Street Café Ltd., Rudolph Doner And John Bergen

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume Date: July 8, 2014 Citation: 2014 HRTO 997 Indexed as: Csanady v. Ottawa City Street Café Ltd.

APPEARANCES

Jay Csanady, Applicant Self-represented

Ottawa Street City Café Ltd, Rudolph Dorner and John Bergen, Respondent) George Crossman, 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 employment, because of sex, family status, marital status and reprisal.

2On March 6, 2014, the Tribunal issued a Case Assessment Direction (“CAD”) advising the parties that a summary hearing would be held by teleconference. The parties were provided with instructions on how to prepare for and participate in the summary hearing and how to address the question whether the Application should be dismissed because it has no reasonable prospect of success.

3In setting the matter down for a Summary Hearing, the Tribunal advised the applicant to be prepared to make submissions on why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence that he has or that is reasonably available to him that will (1) prove that there was a link between the respondents’ alleged actions and his sex, family status, and marital status, and (2) prove that there was a link between the respondents’ alleged actions and the applicant having claimed or attempted to enforce a right under the Code, and that the alleged actions were intended as a reprisal for having claimed or attempted to enforce a right under the Code. The parties were advised that no witnesses will give evidence during the summary hearing.

4To establish reprisal, an applicant must be able prove that there was a link between a respondent’s alleged actions and the applicant having claimed or attempted to enforce a right under the Code, and that the alleged actions were intended as a reprisal for having claimed or attempted to enforce a right under the Code. See Noble v. York University, 2010 HRTO 878 at para. 33. Having reviewed the Application, it appears that the applicant may be unable to prove that there was a link between the respondents’ alleged actions and the applicant having claimed or attempted to enforce a right under the Code, and that the alleged actions were intended as a reprisal for having claimed or attempted to enforce a right under the Code.

5The test the Tribunal applies at this stage in the process is whether an application has “no reasonable prospect of success”. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move to the next stage in the hearing process. If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that the application has no reasonable prospect of success, it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of the application will move ahead, while part is dismissed.

6The applicant’s role in the summary hearing is to describe to the Tribunal the evidence they propose to call to support their belief that they experienced discrimination. It is not up to the applicant to demonstrate that an application HAS a reasonable prospect of success.

7While the primary focus in the summary hearing is on the applicant’s evidence, the respondent’s explanation may be considered where the parties agree on the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

8The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, or where it would assist the Tribunal in better understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.

9I have carefully considered the materials filed by the parties and their oral submissions. While this Application is largely related to issues of wrongful dismissal, I cannot find that there is no reasonable prospect that the applicant can succeed under the Code. I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

Directions

10The Tribunal issues the following Directions:

• The Application will continue to the next stage in the hearing process.

• The parties will be offered mediation, failing which, the Tribunal will set one day for a hearing into this Application.

11I am not seized.