HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tamas Foldes Applicant
-and-
Victor Caldana Respondent
DECISION
Adjudicator: Josée Bouchard Date: October 25, 2016 Citation: 2016 HRTO 1381 Indexed as: Foldes v. Caldana
APPEARANCES
Tamas Foldes, Applicant Self-represented
Victor Caldana, Respondent Maria Kotsopoulos, Counsel
Introduction
1On August 19, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to contracts because of age.
2On April 4, 2016, the Tribunal directed, on its own initiative, that a summary hearing be held to address the following preliminary issues:
- Should part of the Application be dismissed because the alleged discriminatory comments are privileged and therefore inadmissible?
- Should the whole Application be dismissed pursuant to Rule 19A of the Tribunal’s Rules of Procedure because there is no reasonable prospect that it will succeed?
3The Tribunal held an in-person summary hearing on October 11, 2016.
Factual Background
Purchase of Vehicle and Small Claims Court Proceeding
4In August 2014, the applicant purchased a vehicle from a Toronto dealership (“the Dealership”). The respondent was a finance manager with the Dealership at the time but he was not involved in the transaction related to the vehicle.
5In March 2015, the applicant filed a claim against the Dealership before the Small Claims Court making a number of allegations related to, for example, the selected lender, the interest rate, false advertising and the value of the trade-in. The respondent filed the Small Claims Court Defence on behalf of the Dealership. On April 21, 2016, the day of the hearing before the Small Claims Court, the applicant and the Dealership entered into Terms of Settlement of the Small Claims Court claim. The applicant also signed a full and final release, including specific reference to a release of the Application to this Tribunal against the respondent.
submissions
6The applicant alleges that the respondent made discriminatory comments based on his age in the Dealership’s written Defence before the Small Claims Court.
7The applicant also alleges that the respondent, although not present during the April 21, 2016 mediation negotiations, ordered the Dealership’s lawyer to force him into signing minutes of settlement (“MOS”). According to the applicant, the Dealership’s lawyer told him that he would not receive the financial compensation provided in the MOS unless he signed the MOS. The applicant submits that he signed the MOS because he needed the money. The applicant also believes that he was forced to withdraw his complaints before other regulatory bodies and tribunals, including this Tribunal, by signing the MOS. The applicant believes that it is because of his age that the Dealership’s lawyer and respondent treated him unfairly.
8The applicant told the Tribunal that he is well-educated and has a Ph.D. He also acknowledges that he read and fully understood the MOS before signing it.
9The applicant admits that he had never met the respondent prior to the summary hearing and that the respondent has never made comments directly to him about his age.
10The respondent maintains that the alleged inappropriate comments in the written Defence were made in the context of litigation and were quotes taken from the applicant’s own description of himself. The respondent argues that the doctrine of absolute privilege applies to any comments made in the Defence. The respondent maintains that absolute privilege attaches to statements made in formal pleadings in civil actions, which includes the Defence before the Small Claims Court.
11The respondent further argues that privilege attaches to mediation negotiations and any comments made by the respondent during those negotiations are privileged.
12The respondent also submits that the Application has no reasonable prospect of success as there are no particulars to indicate that the respondent treated the applicant unfairly because of his age. The Tribunal does not have jurisdiction to deal with or remedy general allegations of unfairness.
DECISION AND ANALYSIS
13For the reasons set out below, I find that the Application has no reasonable prospect of success.
14The nature of a summary hearing has been set out in Dabic v. Windsor Police Services, 2010 HRTO 1994. The focus of a summary hearing is on whether, assuming all the allegations to be true, there is a reasonable prospect that the applicant can show a link between what happened to him and the prohibited ground of disability.
Absolute Privilege
15In Ornelas v. Casamici Restaurant, 2010 HRTO 1078 at para. 90, the Tribunal summarized the principle of absolute privilege as follows:
Absolute privilege is a common law principle which, among other things, prohibits legal proceedings which are based on statements made by legal counsel while representing their clients in respect of ongoing or contemplated judicial or quasi-judicial proceedings. It is rooted in the principle that legal counsel must be free to carry out their professional duties to their clients without fear of consequences. In this way, absolute privilege exists to serve the public’s interest in the orderly and effective administration of justice.
16This Tribunal has applied the doctrine of absolute privilege broadly to statements made in submissions that are equivalent to pleadings in administrative proceedings, to letters of complaint that lead to the initiation of legal proceedings, to statements made during an investigation, to evidence of witnesses in a legal proceeding, to the legal position taken by a party in litigation and to submissions made by an employer’s representative in the context of proceedings before an administrative tribunal. See Carlos v. 1174364 Ontario, 2009 HRTO 311, and Mauch v. Golding, 2014 HRTO 1601.
17In Dixon v. Morrison, 2010 HRTO 2156, the Tribunal was asked to consider whether absolute privilege applies to submissions made by an employer’s representative before a Workplace and Safety Insurance Board (“WSIB”) proceeding. The Tribunal found that absolute privilege attaches to those submissions.
18Based on the above-mentioned jurisprudence, I find that absolute privilege attaches to the comments made in the written Defence before the Small Claims Court and they cannot be used as a basis for an allegation of discrimination under the Code.
Prima Facie Case
19The applicant has provided no particulars in support of his allegations that the respondent discriminated against him based on his age during the mediation negotiations. During the summary hearing, the applicant made numerous bald assertions that the respondent treated him improperly because of his age. However, the applicant never demonstrated any facts that could lead to such conclusions. The applicant admitted to having never met or spoken with the respondent prior to the summary hearing. The applicant could only point to a general feeling that the respondent did not like him because of his age.
20The 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 age, race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.
21I find that there is no connection, other than mere speculation, between the events that took place and the applicant’s age and there is no reasonable prospect that the applicant can prove that the respondent discriminated against him on the basis of age.
order
22For the reasons outlined above, the Application is dismissed.
Dated at Toronto, this 25th day of October, 2016.
“Signed by”
Josée Bouchard Vice-chair