Babic v. Tim Hortons Ltd., 2015 HRTO 146

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dobroslavka Babic

Applicant

-and-

Tim Hortons Ltd.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 30, 2015

Citation: 2015 HRTO 146

Indexed as: Babic v. Tim Hortons Ltd.

WRITTEN SUBMISSIONS

Dobroslavka Babic, Applicant

Self-represented

introduction

1This Interim Decision explains why this Application is being dismissed as against the respondent Office of the Independent Police Review Director (“OPIRD”). It also explains why the Tribunal will schedule a summary hearing to determine whether, as against the respondent Tim Hortons, the Application should be dismissed as having no reasonable prospect of success.

2The Application alleges discrimination with respect to services because of race, colour, ancestry, place of origin, ethnic origin, creed, sexual orientation, gender identity, gender expression, family status and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

application made against oiprd

3The applicant states that the OIPRD made a discriminatory decision when it rejected many complaints she made about the police in Hamilton.

4The Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”). The NOID directs her to make submissions on the question of whether the Application should be dismissed as against the OIPRD because its decisions are adjudicative in nature. The reason the Tribunal issued the NOID is because it does not have jurisdiction to review decisions that are protected by the principle of adjudicative immunity.

5The applicant’s submissions appear to object to having been asked to make submissions on this issue. They appear to criticise the Tribunal for decisions it has made in another or other applications involving the applicant. The submissions also discuss what the applicant alleges occurred at Tim Hortons, as well as what she says happened at a hospital in Hamilton.

6The applicant has not made any arguments about the issue which the Tribunal asked her to address, which is whether the Tribunal has jurisdiction to deal with OIPRD’s rejection of her complaints. In the absence of any argument to the contrary, I conclude that decisions of OIPRD are protected by the doctrine of adjudicative immunity. This is because the OIPRD makes its decisions in accordance with an adjudicative process. As a result the Tribunal has no authority to deal with that aspect of this Application. The Application is dismissed as against OIPRD.

application made against tim hortons

7The applicant alleges that on September 20, 2014 an employee of the respondent Tim Hortons refused to serve her and was insulting to her.

8Having reviewed the file, the Tribunal has decided to hold a summary hearing to determine whether this Application should be dismissed, in whole or in part, as against Tim Hortons on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

9The hearing will be scheduled for a half day hearing by conference call.

10The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's adverse treatment of the applicant is based, at least in part, on the applicant’s race, colour, ancestry, place of origin, ethnic origin, creed, sexual orientation, gender identity, gender expression, family status or marital status. In other words, the prohibited ground must be connected to the adverse treatment.

11Where it appears that all or part of an application may have no reasonable prospect of success the Tribunal may determine it is appropriate to hold a summary hearing on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

12Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify at a summary hearing.

13Unlike other preliminary matters, which are determined on a balance of probabilities, the test the Tribunal applies at a summary hearing is whether an application has no reasonable prospect of success. If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

14There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because it appears that the applicant may be unable to prove that there is a connection between what the respondent Tim Hortons is alleged to have done, and the grounds of race, colour, ancestry, place of origin, ethnic origin, creed, sexual orientation, gender identity, gender expression, family status or marital status cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to the grounds, it is not clear that there is evidence available to the applicant to prove the connection. The focus of the inquiry at a summary hearing is on the evidence the applicant has or may be able to obtain.

15At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.

16The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment she experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what she experienced. As noted above, the parties will not be submitting evidence at the summary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

17While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondent’s allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is 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.

18The Registrar will schedule a half day summary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half day, not all summary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

19No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will proceed first during this summary hearing and must be prepared to address the issues discussed above.

20The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision.

21A copy of the Application is delivered to the respondent with this Interim Decision. The respondent need not file a Response to the Application unless directed to do so by the Tribunal. The respondent must, however, write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing or confirming contact information for the person to whom notices and other documents should be delivered.

order

22The Application is dismissed as against the Office of the Independent Police Review Director.

23The Registrar is requested to schedule a summary hearing by teleconference in order for the Tribunal to be able to determine whether the Application should be dismissed as against Tim Hortons on the ground that it has no reasonable prospect of success.