Khan v. Peel Condominium Corporation No. 492, 2015 HRTO 906

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asad Khan

Applicant

-and-

Peel Condominium Corporation No. 492

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: July 8, 2015

Citation: 2015 HRTO 906

Indexed as: Khan v. Peel Condominium Corporation No. 492

APPEARANCES

Asad Khan, Applicant

Self-represented

Peel Condominium Corporation No. 492, Respondent

Carol Dirks, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to good, services and facilities as well as contracts because of race. The applicant self-identifies as a person from Pakistan.

2The applicant also checked the box for “reprisal” on his Application. When it was explained to the applicant that reprisal under the Code relates to intentional acts against him for raising his human rights allegations, the applicant agreed that the ground of reprisal does not apply to his circumstances.

3By Case Assessment Direction (CAD) dated March 20, 2015, the Tribunal granted the respondent’s request to schedule this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The CAD indicated that the Tribunal would hear submissions in relation to the test of “no reasonable prospect of success”. In addition, the parties were advised that they would be asked to address the applicant’s request to amend his Application.

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests.

5The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discriminatory in the legal sense unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

6The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. Discrimination in the legal sense requires proof of adverse or unfair treatment which is based, in whole or 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 understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.

7At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant 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 to support the applicant’s belief that they have experienced discrimination.

8The real question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.

9In order to proceed to a full hearing, some evidence must exist, which goes beyond the applicant’s feeling or belief that their personal characteristic played a role in what they experienced. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, 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.

10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about 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.

11There is no burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success.

12The parties participate in the summary hearing by teleconference on July 8, 2015.

13The applicant is a condo owner in a commercial building. He alleges that the Board of the commercial condo building gives preferential treatment to Chinese business people as compared to the applicant. In the Application he describes a dispute about his request to locate an ATM machine in a high traffic area. He alleges that his request was denied while the request of another owner, who is of Chinese origin, was approved.

14The applicant filed a Small Claims Court action in relation to the same facts which has been officially stayed pending the outcome of this Application.

15The applicant is also seeking to amend his Application to include an allegation of discrimination arising on November 26, 2014. The applicant alleges that a condo owner near the applicant has leased a condo unit to a competitive cell phone business. Again, the applicant alleges that the Board did not intervene to protect the applicant’s interests because the business is run by a person of Chinese origin.

16I have considered the submissions of the parties and their written materials. The respondent denies the allegations of discrimination. After hearing the explanation and the anticipated evidence of the respondent, I indicated to the parties that the explanation, if proven, would be compelling. After hearing some or all of the evidence, an adjudicator may very well accept that the respondent did not engage in discrimination. However, at this stage in the process, the Tribunal will not dispose of an application on the basis that the respondent has a viable explanation for what occurred.

17Accepting the applicant’s allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code. The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, 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.

18With respect to the request to amend the Application to add the allegation of November 26, 2014, the allegation is timely and therefore the applicant could simply file a new application. In those circumstances, the most appropriate approach is to permit the amendment.

19The respondent also raised the question which social area applies to this Application. This question I leave to the presiding adjudicator, who will deal with it in the context of evidence.

Direction

20I make the following directions:

• The applicant’s allegation of reprisal is dismissed;

• The applicant’s request to amend is granted. The applicant will have 10 days from the date of this Interim Decision to provide the respondent and the Tribunal with the details of his allegation of November 26, 2014;

• The normal Rules will apply to a Response and Reply in relation to the new allegation;

• The applicant has agreed to mediation. The respondent will have 10 days from the date of this Interim Decision to advise the Tribunal whether the respondent consents to participate in mediation;

• If the parties do not participate in mediation or do not resolve this Application in mediation, it should be scheduled for a one day hearing.