Gordon Kerr v. Neville Henderson, 2016 HRTO 1025

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gordon Kerr Applicant

-and-

Neville Henderson Respondent

DECISION

Adjudicator: Bruce Best Date: August 3, 2016 Citation: 2016 HRTO 1025 Indexed as: Kerr v. Henderson

APPEARANCES

Gordon Kerr, Applicant Self-represented

Neville Henderson, Respondent Self-represented

Introduction

1This Application alleges discrimination with respect to services and facilities because of sexual solicitation or advances and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a preliminary hearing be held to determine whether some of the allegations may be untimely, and whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The Application was heard by conference call on March 8, 2016.

3As explained more fully below, I find that the Application must be dismissed. I find that only two of the events are timely, both of which are allegations of reprisal. With respect to those allegations, even if I accept the facts alleged by the applicant as true, he has not been able to point to any evidence beyond his own suspicions or beliefs that the respondent intended to reprise against him under the Code.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Background

10The parties are both trap shooters. The applicant was the secretary/treasurer of the Ontario Provincial Trapshooting Association (“OPTA”). The respondent was the president of the OPTA, and also president of his local club, the Galt Sportsmen’s Club.

Sexual Solicitation and March 10, 2011 Letter

11The applicant alleges that the respondent made sexual advances towards him in late 2010 and early 2011, which the applicant rejected. The respondent denies these incidents ever occurred, and claims that he did not even see the applicant during the months the solicitation is alleged to have taken place. For the purposes of this Decision, however, as noted above, I am not determining whether the applicant is telling the truth, but will assume, without making any findings, that these incidents occurred.

12On March 10, 2011, the OPTA board sent a letter to the applicant, signed by the respondent in his capacity as president, advising the applicant that he was being removed from his position on the executive. The applicant alleges that this was reprisal because he had refused the respondent’s advances. The respondent takes the position that the board decided to remove the applicant as secretary/treasurer due to significant personality conflicts between the applicant and another board member which were hindering the work of the OPTA board.

July 8, 2013 Letter

13Over two years later, on July 8, 2013, a further letter was sent to the applicant from the OPTA board, again signed by the respondent in his capacity as president, advising the applicant that the Board of the OPTA had voted to permanently remove the applicant as a member, and to strike his name from the Ontario Trapshooting Hall of Fame. The respondent claims that, after the applicant was replaced as secretary/treasurer, irregularities were found in his bookkeeping, leading to a forensic audit which found evidence of fraud and/or breach of trust. The respondent takes the position that the letter of July 2013 revoking the applicant’s OPTA membership and removing him from the Hall of Fame was directly as a result of the findings in the report. The applicant was subsequently charged and pleaded guilty to breach of trust under the Criminal Code, R.S.C. 1985, c.C-46.

14The applicant acknowledges that he pleaded guilty to the criminal charges, but claims he did so only on the advice of his lawyer, and maintains that the accounting irregularities were not serious. He also claims that the criminal charges and conviction are not relevant to explain the motivation behind the July 8, 2013 letter, because at that time he had not yet been charged. He was charged in September 2013, and pleaded guilty to breach of trust in January 2014.

June 10, 2014 Letter

15The applicant applied for membership in the Galt Sportsmen’s Club in the spring of 2014. On June 10, 2014, the respondent, in his capacity as the president of the Galt Sportsmen’s Club, sent a letter to the applicant advising him that he was not being accepted as a member in that club. The respondent claims that the club had learned that the applicant had come to the club property to shoot on a number of occasions, and that contrary to the club’s by-laws he had not paid the visitor’s fee, had not signed in, and had not signed a waiver. The respondent indicated that it was a very serious issue for someone to be shooting on club property without the club’s knowledge or authorization, with respect to safety, liability, and as it jeopardized the club’s insurance coverage. The applicant acknowledges that he had attended the club approximately 8 times in 2013 and had only signed in on one occasion, but claims that there was no signage indicating this was necessary.

Delay

16Sections 34(1) and (2) of the Code read as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

17The applicant takes the position that the three letters were all related, and that they all evolved from the alleged solicitation. He claims that he did not pursue the matter until the reprisals, in his words, “started to accumulate”. This Application was filed on September 15, 2014.

Alleged Solicitation and March 2011 Letter

18The applicant claims the last alleged incident of solicitation occurred in January or February 2011, and that he was sent the letter from the OPTA removing him as secretary treasurer in March 2011.

19The applicant was not able to provide any explanation for why he did not pursue an application with respect to either the alleged solicitation or reprisal within a year of the March 2011 letter.

20In my view, the allegations with respect to solicitation are clearly out of time under s.34(1)(a). The application was filed more than 3½ years after the last alleged incident, and the applicant has not provided any explanation for the delay. The allegation that the March 2011 letter constituted a reprisal is also well out of time.

21The applicant has not provided any evidence that would support a finding that the delay in pursuing an application with respect to the 2011 events was incurred in good faith for the purposes of s.34(2) of the Code. His position is, rather, that these events, along with the two subsequent letters of July 8, 2013 and June 10, 2014, were all incidents in a series for the purposes of s.34(1)(b) of the Code. The applicant does not allege any incidents between March 2011 and July 2013, a gap of approximately 2 years and 4 months.

22The Tribunal has held that a gap of more than one year between incidents will in most cases be sufficient to interrupt the series. See Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para 9 and Thambipillai v. Toronto District School Board, 2011 HRTO 487 at paras 17-20. The Tribunal has also held that those decisions should not be seen to import a rigid “less than one year” rule when determining whether two incidents constitute a series, particularly where there is a nexus between the events and an explanation for the gap. See Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927 at para 11.

23In this case, I find that given the gap of time, the applicant has not been able to provide any justification for the delay in pursuing the 2011 allegations. The applicant’s evidence was that he only decided to pursue the 2011 incidents after receiving the letters in 2013 and 2014. In my view, the fact that there may be a timely allegation of reprisal several years after an alleged discriminatory incident will not, without a reasonable explanation for the gap, make the older allegations timely. I find that in the circumstances of this case the 2011 incidents are not part of a series for the purposes of s.34(1)(b) of the Code.

July 2013 and June 2014 Letters

24The June 2014 letter was timely. Though there is a question of whether the July 2013 letter could be considered another incident in a series for the purposes of s.34(1)(b) of the Code, given that it was within one year of the timely letter I was prepared to consider both as being timely for the purposes of the summary hearing.

No reasonable prospect of success

25As noted in the CAD, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s rights under the Code. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention, and a link between the alleged sexual solicitation and the respondent’s subsequent actions.

26Even if I assume that the solicitation occurred in 2010-2011 as the applicant claims, he has not been able to point to any evidence, other than his own feelings or beliefs, that would support the claim that the letters of July 2013 or June 2014 were intended as a reprisal under the Code.

27As noted, in applying the test of no reasonable prospect of success, the applicant’s version of events is assumed to be true unless there is some clear evidence to the contrary, or the respondent’s version of events is not disputed by the applicant. In this case, the respondent’s explanation for sending the letters of July 2013 and June 2014 are, for the most part, not in dispute. The applicant acknowledges that he shot at the Galt club without signing in, signing a waiver, or paying the guest fee. The applicant acknowledges that there was a forensic audit with respect to his financial management of the OPTA, which led to criminal charges and a guilty plea for breach of trust. What is in dispute is whether reprisal for refusing solicitation was also a factor in the decisions leading to the July 2013 and June 2014 letters.

28Though, as noted, he does not dispute the facts behind the reasons given by the respondent for sending the letters, he claims that these events, including the criminal breach of trust, are just “smoke and mirrors” to hide the real motivation, which was reprisal because the applicant had refused the respondent’s sexual advances. The applicant has, however, not been able to point to any evidence whatsoever that may support this claim beyond his own suspicions and beliefs.

29As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his own suspicions and beliefs, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly 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. As the applicant has not been able to do so, I find that the Application should be dismissed as having no reasonable prospect of success.

Order

30For the above reasons, the Application is dismissed.