Lenart v. Smith, 2015 HRTO 505

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Lenart Applicant

-and-

Gynette Smith Respondent

DECISION

Adjudicator: Leslie Reaume
Date: April 21, 2015 Citation: 2015 HRTO 505 Indexed as: Lenart v. Smith

APPEARANCES

Brian Lenart, Applicant Self-represented

Gynette Smith, Respondent Bradley Troup, 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 services because of gender identity.

2On December 22, 2014, the Tribunal issued a Case Assessment Direction (“CAD”) advising the parties that a summary hearing would be held by teleconference. The parties were also provided with instructions on how to prepare for and participate in the summary hearing. The teleconference took place on March 30, 2015.

3The test the Tribunal applies at this stage in the process is whether an application has “no reasonable prospect of success” to determine whether an application should be dismissed in whole or in part.

4An applicant’s role in the summary hearing is to describe their allegations in more detail and point to the evidence they intend to rely on to support their belief that they have experienced discrimination.

5While 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.

6The 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.

7At the summary hearing stage, the Tribunal is not assessing the applicant’s evidence or the impact of the treatment they have experienced. At this stage, the Tribunal accepts that the applicant is telling the truth unless there is some clear evidence to the contrary.

8However, accepting the applicant’s assertion that they were treated unfairly does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the unfair treatment they experienced arises from discrimination.

9In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground played a role in what they experienced. If the applicant is unable to point to evidence, beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

ANALYSIS

10The respondent made submissions in support of dismissing the Application.

11The applicant was asked to assist the Tribunal in understanding the connection between the respondent’s actions and his gender identity which he describes as male. The applicant was asked to explain why he believes that one of the reasons for the respondent’s conduct toward him is the fact that he is male.

12The allegations relate to the applicant’s attendance at a coffee shop. He alleges that he was mistreated by staff members. His interactions with the staff ultimately resulted in a trespass notice preventing him from being served at the coffee shop.

13The applicant was unable to state how the treatment he is alleged to have experienced is related to the fact that he is male. His allegations appear to be based on the fact that he is a man who was known by the staff of the coffee shop and treated unfairly by them. I described how an applicant would make a connection between a ground of discrimination and the treatment they received. For example, it would be discriminatory for the coffee shop to refuse to hire a woman because she was pregnant or refuse to serve a person because of their race. The applicant took from those examples that I was suggesting that only a non-white person could claim discrimination. I explained that this was not correct. The issue here is that the applicant is unable to demonstrate a connection between the treatment he experienced and the fact that he is male.

14Even if accept the applicant’s allegation that he has been treated unfairly, which is denied by the respondent, I find that there is no reasonable prospect that the applicant can succeed under the Code. In order to bring an application under the Code, the respondent’s conduct has to be based, at least in part, on the prohibited ground identified by the applicant. In this case, the applicant is not able to point to evidence which might support that connection.

15Accordingly, the Application is dismissed.