Antoniu Marcu v. Black Eagle Bar and Restaurant, 2015 HRTO 845

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antoniu Marcu

Applicant

-and-

Black Eagle Bar and Restaurant

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: June 24, 2015

Citation: 2015 HRTO 845

Indexed as: Marcu v. Black Eagle Bar and Restaurant

APPEARANCES

Antoniu Marcu, Applicant

Self-represented

Black Eagle Bar and Restaurant, Respondent

Carlos Fileti, Representative

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of race, colour, ancestry, ethnic origin and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Pursuant to a Case Assessment Direction (“CAD”) dated April 16, 2015, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect of success that the Application will succeed.

3Both parties made submissions at the summary hearing by teleconference.

preliminary issue

4The applicant requested an adjournment of the summary hearing. He advised the Tribunal that he had a lawyer when he filed his Application and was certain the lawyer’s name appeared on the Application. The Tribunal advised this was not the case, but further inquired of the applicant the reasons for the adjournment request.

5The applicant advised that the lawyer told him a week before the hearing that she was too busy to help him at the summary hearing, but gave him the telephone number for what sounded like the Human Legal Resource Support Centre (“HLRSC”). Someone there told him they needed at least two weeks’ notice of the hearing in order to assist him.

6The Tribunal asked the applicant if he understood the nature of the hearing, and he advised he did but preferred to have a legal representative represent him at the hearing.

7The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments (“Practice Direction”) states:

If rescheduling is required, the parties are encouraged to agree on mutually available dates that are within 12 weeks of the original hearing date(s) […] This must be done within 14 days of the date of the Notice of Confirmation of Hearing.

8The Notice of Confirmation of Preliminary Hearing in this case was delivered to the parties on May 13, 2015 for the June 23, 2015 hearing date. The applicant did not contact the respondent or the Tribunal in advance of the hearing with respect to rescheduling this matter, and only asked for an adjournment on the morning of the hearing.

9The Practice Direction further states:

Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

10In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 (at para. 4), the Tribunal stated that it is not only the interests of the parties that must be considered in deciding whether or not to grant an adjournment. The Tribunal is also obligated to ensure that public resources are used effectively. For this reason, once a hearing has been scheduled, parties have 14 days from the Notice of a Confirmation of Hearing to consult with each other on alternate dates and to advise the Tribunal if no agreement can be reached. Adjournments after this period are granted only under exceptional circumstances.

11The Tribunal has held that a party’s decision to retain counsel after the hearing has been scheduled is not an “extraordinary circumstance” justifying an adjournment simply because counsel is unavailable or unprepared: Wilson v. York (Regional Municipality), 2009 HRTO 2020, and Schenk v. OSAD, 2010 HRTO 446. The applicant’s request to adjourn the hearing because an HLRSC lawyer was unavailable is not an extraordinary circumstance. Even if I accepted the applicant’s submission that he had a lawyer and was attempting to change lawyers, a decision to change counsel also has not generally been recognized as an extraordinary circumstance justifying an adjournment: Khan v. CCSI COMPUCOM Systems, 2009 HRTO 1697, and Leone v. Solie, 2010 HRTO 855.

12The parties were notified of the hearing date in May, 2015. Contrary to the Tribunal’s Practice Direction, the applicant’s request for an adjournment was not made in a timely manner. The applicant’s sole reason for the adjournment request is either to obtain or change counsel. In the applicant’s case, he had sufficient time to retain or change counsel in advance of the hearing, or to contact the Tribunal and request an adjournment before the morning of the hearing, both of which he failed to do.

13Given the scarcity of Tribunal resources and the obligation to use them effectively, as well as the applicant’s indication that he understood the purpose of the hearing, I denied the applicant’s adjournment request.

factual background

14The 43 year old applicant self-identified at the hearing as white, but stated in his Application that he is “white, European, Romanian”. He alleges that on June 22, 2014 he visited the respondent bar and restaurant (“the restaurant”) where he was served food and two beers. When he requested a third beer, the server would not serve him.

15The applicant alleges in the Application that the bartender at the restaurant refused to sell him a third beer claiming he was drunk. When asked during the hearing for details of the alleged incident, the applicant said the server just told him he was not serving him another beer and did not say anything else.

16The applicant alleges in the Application that he left the restaurant and finished his dinner elsewhere. He felt offended and went to the Better Business Bureau (“BBB”) who told him they could not help him and directed him to the Tribunal.

17The Tribunal asked the applicant how he connected what he alleges the respondent did to him to the grounds of race, colour, ancestry, ethnic origin and age. The applicant advised that at first he just thought they did not like him, but then began to think it was strange they refused him service. It is then he went to the BBB who told him to file an application with the Tribunal.

18The Tribunal asked if the applicant had any other evidence to connect the treatment to the prohibited grounds claimed. The applicant added that there were different people of different ages and backgrounds at the restaurant that the restaurant served while it refused him service.

19The respondent submitted that if it had discriminated against the applicant as alleged, it would not have served him in the first place. Because of the liquor laws, it is common procedure at the restaurant to refuse patrons service if they appear to have consumed enough alcohol already. The staff at the restaurant has various techniques to determine if they should refuse to serve more alcohol to a patron.

20The respondent submitted that the restaurant has various patrons of all different ages, races, colours and ethnic backgrounds, and the respondent does not understand why the applicant felt the way he did.

DECISION

21The Application is dismissed on the basis that it does not have a reasonable prospect of success.

analysis

22This hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9 the Tribunal provided the following guidance:

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. [Emphasis added]

23Other than alleging that he thought it was strange the respondent did not serve him and that others around him of different ages and backgrounds were served, the applicant could point to no evidence that would make a link between the denial of service and the grounds of race, colour, ancestry, ethnic origin and age claimed.

24The applicant did not identify any other evidence he might call to support his assertion that his race, colour, ancestry, ethnic origin and age were factors in the respondent’s decision not to serve him a third beer. The applicant did not advise the respondent of his race, colour, ancestry, ethnic origin or age. The applicant also did not allege that the respondent made any reference to any of the grounds when refusing him service, or that there was any implication from the respondent that one of these grounds was the reason he was refused service.

25Even if the respondent was wrong not to serve the applicant a third beer, unfair treatment does not, in itself, constitute a violation of the Code. As the Tribunal points out in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

26The applicant’s assertion that his race, colour, ancestry, ethnic origin and age were factors is nothing more than a bald assertion or, to use the words in Forde, “mere speculation and accusations.”

27In addition, the Tribunal repeatedly has said that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See, for example: Leong v. Ontario (Attorney General), 2014 HRTO 311.

28Given the absence of any proposed evidence, or any evidence that may be reasonably available to the applicant, on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of any of the alleged grounds.

ORDER

29The Application is dismissed.