Konesavarathan v. Guelph Mercury, 2016 HRTO 1454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan Applicant

-and-

Guelph Mercury, Ontario Press Council, and Guelph General Hospital Respondents

DECISION

Adjudicator: Bruce Best Date: November 10, 2016 Citation: 2016 HRTO 1454 Indexed as: Konesavarathan v. Guelph Mercury

APPEARANCES

Kovarthanan Konesavarathan, Applicant Self-represented

Guelph Mercury, Respondent Gregory Power, Counsel

Ontario Press Council, Respondent William Blakeney, Counsel

Guelph General Hospital, Respondent Robert Salisbury, Counsel

Introduction

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

2By Case Assessment Direction (“CAD”), I directed that a summary hearing be held to address 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 August 10, 2016.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, and based on the undisputed documentary evidence before me, the applicant has not been able to point to any evidence beyond his own suspicions or beliefs that support his assertions that the actions of the parties were contrary to 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. In the present case, the allegations of discrimination largely arose out of written communications between the parties, and I have relied on these documents in reaching my conclusions.

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 Applicant is a freelance writer involved with several local media organizations in Guelph. One of his roles was as a member of the volunteer community editorial board for the respondent Guelph Mercury (the “newspaper”).

11In April 2015, after the CEO of the Guelph General Hospital (the “hospital”) spoke at a meeting of the newspaper’s community editorial board, the applicant contacted the hospital indicating his interest in writing an article about emergency room wait times. A meeting was arranged with hospital staff for May 12, 2015. After the meeting, the applicant followed up with the hospital, and indicated that he had instead decided to write an article on stroke services. The applicant included a draft article and asked the hospital to provide additional information, corrections, quotes, and photographs for the article on a short turnaround. The hospital responded and proposed another meeting to provide further information on stroke services, noting that these services were part of a broader regional effort, and suggested that it could invite other individuals with greater knowledge on the subject.

12The applicant refused the offer, and asked them again to provide the information requested. The hospital contacted the newspaper to determine whether there was in fact a deadline, and received confirmation that there was not. The hospital then contacted the applicant stating “I believe in order for your column to go forward more work needs to be done”, and suggesting that as there was no firm deadline he consider conducting further research. The hospital also gave him the contact information for a key individual involved in the regional stroke services program who would be able to provide him with further information. The applicant responded that the newspaper did not set his deadlines, and that he decided what community issues to cover.

13Two weeks later, without further input from the hospital, he published two articles in the newspaper, one on stroke services and another on emergency room wait times. The applicant subsequently sent several emails to his editor at the newspaper, criticizing the hospital for being unprepared for the meeting they had had with him, for not providing the information he requested, and for coming with its own agenda. The applicant indicated in one email, “I believe they under-evaluated me based on stereotyping”, and in another email, “I am also worried if their under evaluation about my work is an automatic assumption that an immigrant could not do a good job.” There was nothing else in these lengthy emails which raised any Code issues, nor any indication of why he believed the hospital’s approach to his inquiries was discriminatory.

14Some weeks later, on July 17, 2015, the applicant sent another email to the hospital asking for information respecting services for victims of sexual assault. The email included the following passage:

I also would like to clarify one more thing. I am an independent writer. Even though the Guelph Mercury publishes some of my columns, it does not influence my independent writing. Therefore, please do not make any amateur attempt to influence my writing by contacting the Guelph Mercury or asking me to conduct research on your preferred topic.

Please kindly provide your response for my specific questions within one week.

15This email was copied to the newspaper. The editor replied to the applicant the same day expressing his concern respecting the tone and content of the applicant’s email, that it may be perceived as being abrupt and bullying, particularly by use of the term “amateur”. He indicated that he wanted to protect the newspaper’s reputation and journalistic relationships. The editor concluded by indicating that if the applicant was going to pursue information in this way it may be best for him to leave the newspaper and contribute solely to other media organizations.

16The applicant replied to the newspaper editor on July 19, 2015, setting out in detail his communication with the hospital, and stating his belief that the hospital criticized his article because he was a racialized person. He also indicated he wanted to launch an “official complaint”, and asked the newspaper to investigate his allegations against the hospital.

17On July 22, 2015, the applicant also called the hospital’s Patient Relations department to make a complaint about how he had been treated by hospital staff with respect to the article. The hospital contacted the newspaper by phone with respect to the complaint that day.

18The applicant also followed up on his July 19, 2015 email that evening with the newspaper. The newspaper editor responded, reiterating his concerns about the applicant’s manner of communication, and stating firmly that it was not prepared to have him stay on as a member of the community editorial board.

19The applicant then filed a complaint with the Ontario Press Council (the “Council”) against the newspaper, alleging that it was improperly exhibiting favouritism in favour of the hospital over him, and that it removed him from the community editorial board when he asked the newspaper to investigate his allegations that the hospital had discriminated against him. The Council indicated that under its constitution it will not normally deal with any complaint that may result in litigation, and that as it appeared the applicant was contemplating pursuing a human rights application, it was inappropriate for the Council to address his complaint. The Council claims that it in fact suggested to the applicant that this Tribunal was the appropriate forum if he believed his Code rights had been violated by the actions of the newspaper.

20The hospital provided a response to the applicant’s July 17, 2015 request for information respecting services for victims of sexual assault.

21Even though the applicant was not a patient, the hospital’s Patient Relations department proceeded with an internal investigation of the Applicant’s complaint, and concluded that its staff had acted appropriately. The applicant disagreed, expressed his dissatisfaction with the investigation, further indicating that he believed the investigation itself was also discriminatory. He closed the email by advising that he had already filed this Application with the Tribunal.

22This Application was filed on September 3, 2015.

Analysis and Decision

Statutory Provisions

23The Application raises discrimination on the basis of services against the hospital and the Council, and with respect to contracts and employment against the newspaper. The relevant provisions of the Code read as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

3. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

The Guelph Mercury

24The Newspaper acknowledges that there was a contractual relationship between itself and the applicant. It disputes that there was any employment relationship as the applicant was a freelance contributor and member of the community editorial board, and not an “employee”.

25The Tribunal, however, has generally taken a broad interpretation of the phrase “with respect to employment” in s. 5 of the Code. See Swain v. MBM Intellectual Property Law LLP, 2015 HRTO 1011 at paras. 21-22, and may include volunteers. For the purposes of the summary hearing, I will assume that the relationship between the applicant and the Newspaper was covered by both s. 3 and s. 5 of the Code.

Reprisal

26The primary allegation against the newspaper is based on reprisal. Section 8 of the Code states:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

27This section only applies to actions that are intended as a reprisal for asserting one’s Code rights. See Noble v. York University, 2010 HRTO 878 at para. 31. For the allegation of reprisal to continue to a hearing on the merits, there must be a reasonable basis to believe that the applicant could establish such intention.

28The applicant takes the position that that he was removed from the community editorial board by the letter of July 22, 2015, and that the newspaper’s email of July 17, 2015 was not an “official Notice of Termination.” He claims that as the July 22, 2015 letter came after his July 19, 2015 request that the newspaper investigate the hospital, and on the same day as his filing the complaint directly with the hospital, that his removal from the editorial board was therefore reprisal for having raised his Code rights.

29However, it is quite clear from the newspaper’s July 17, 2015 email that the concern was the inappropriate and bullying tone of applicant’s communication with the hospital, which it felt may negatively affect the newspaper’s reputation and relationships. This email was sent to the applicant two days before he asked the newspaper to investigate his allegations of discrimination. The July 22, 2015 letter was merely confirming the same concerns expressed in the July 17, 2015 email. In my view, there is no reasonable prospect of success that the applicant will be able to persuade a Tribunal that the newspaper’s decision to remove him from the community editorial board was in any way intended as reprisal for his raising allegations of discrimination against the hospital.

Duty to Investigate

30The second allegation against the newspaper is that it failed to investigate his complaint against the hospital. However, the applicant has not been able to point to any authority which would place a duty on the newspaper to investigate the applicant’s complaints against a third party in these circumstances.

31In Payne v. Otsuka Pharmaceutical Company, 2002 CanLII 46516 (ON HRT) (“Payne”), at pp. 22-23 (paras. 62-63), the Board of Inquiry addressed the scope of the duty to investigate allegations against third parties:

The Board finds there is a human rights duty not to condone or further a discriminatory act that has already occurred. To condone or further a discriminatory act would extend or continue the life of the initial discriminatory act. Indeed, it is conceivable that the subsequent discriminatory act or tail-end could be worse in impact than the beginning of the chain of discrimination. The legal duty owed is not just as between employer-employee, service provider-client, landlord-tenant, etc. The obligation extends to those who become involved in a situation that involves a discriminatory act, who, while not the main actors, are drawn into the matter nevertheless, through contractual relations (i.e., the Ontario Respondents) or otherwise.

The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the complainant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate the conditions. Accordingly, on one end of the spectrum of responsibility, an employer has a legal duty to its employees, agents and even to its customers and clients. On the other end of the spectrum, a mere bystander would have no duty to another stranger. A customer generally would have no duty to another customer of its supplier.

32In Couchie v. Ontario (Municipal Affairs and Housing), 2011 HRTO 689 (“Couchie”), the respondent ministry contracted with an agency to provide training on Aboriginal issues. The ministry was unsatisfied with the applicant’s performance, and directed the agency to cancel her contract. The applicant alleged that the ministry’s decision was based on discriminatory factors, and that the agency had an obligation to look behind the ministry’s decision to ensure it was not condoning or furthering the ministry’s prior discriminatory action. The Tribunal held, at paras. 76-77, that there could be a legal duty on a respondent to investigate the basis for a third party’s decision in order to ensure it was not condoning or furthering a prior discriminatory action.

33In Hallett v. Grey Bruce Health Services, 2009 HRTO 403 at paras. 25-28, the Tribunal noted that the duty will not be imposed in all circumstances, but that it depends on the “control or power over the situation.” The result is that there may be no duty to investigate even though a party may have some ability to seek to influence the parties to the dispute.

34In Couchie, the fact that the agency had legal control over the applicant is what gave rise to the legal duty not to condone the prior discriminatory action. The duty arose in the context of the agency having to decide whether or not to follow the ministry’s direction to cancel the applicant’s contract. In the present case, however, the newspaper was not being asked to make any decision that would condone or further any alleged discriminatory action by the hospital. Rather, the applicant was simply asking the newspaper to intervene in his dispute. As the applicant himself made clear, he was an “independent writer” and the newspaper did not influence his writing, nor was it the only media organization he was writing for. The newspaper had no control over the situation between the applicant and the hospital. Though, as I found above, the relationship between the newspaper and the applicant may fall under s. 5 of the Code, this does not mean that issues that arose between the applicant and his sources would therefore be the responsibility of the newspaper to investigate. The fact that the applicant intended to submit his columns to the newspaper for publication is, in my mind, not sufficient to create a legal obligation on the part of the newspaper to get involved in the applicant’s dispute.

35For the above reasons, I cannot find that there was any obligation on the newspaper to conduct an independent investigation of the allegations against the hospital.

Ontario Press Council

36The Applicant is not alleging that the Council, directly or indirectly, refused to consider his complaint because of his race, place of origin, ethnic origin or any other Code ground. He is, rather, alleging that the Council’s rule that it does not get involved in any dispute that may result in litigation has an adverse impact on the promotion of Code values. He argues that the Council should play a more active role in eliminating discrimination by investigating allegations such as his against its member organizations, and that by not doing so it is in effect permitting discrimination to continue.

37The Council claims that that it is not a regulatory body, but a voluntary organization whose primarily role is to consider complaints filed by the public against journalists who do not follow established practices. It takes the position that it is not within its mandate to take on the additional and quite separate role the applicant suggests.

38In my view, the applicant has not raised any allegations that could result in a finding of discrimination against the Council. What the applicant is attempting to do is to force the Council to change its mandate. This is not the purpose of the Code, and I find that there is no legal basis for the Application against the Council to continue.

39For these reasons, the Application against the Council is dismissed.

Guelph General Hospital

Newspaper Column

40The hospital argues that there is no service relationship between it and a journalist seeking information for a story. The applicant made a number of arguments that the allegations against the hospital are covered by the Code, including claiming that as he was not newspaper staff, he was therefore not a “journalist” but merely a member of the community. He claims that providing information to members of the community is a service provided by the hospital, and any such communication would therefore fall under the Code.

41I do not, however, need to determine this question, as even assuming, without finding, for the purposes of this decision that there is a service relationship between the applicant and the hospital for the purposes of the Code, the applicant has nonetheless been unable to point to any evidence that would support his belief that the adverse treatment he claims he received was based on a Code ground.

42The applicant made general claims that the manner in which he was subject to negative racial stereotypes by hospital staff in the course of his attempting to obtain information for his column. The applicant suggested that the fact that the hospital contacted the newspaper was also because of stereotypes. He did not, however, point to any evidence to support these beliefs or assumptions, nor did he indicate what particular stereotypes may have been involved.

43The central basis for his claim of discrimination appears to be that the hospital suggested more work needed to be done on his column on stroke services. The applicant took offence at this, and, as he believed that the suggestion was unjustified, he concluded that this was a criticism of his writing skills based on an “unfounded assumption or historical prejudice” that racialized people were not able to write well.

44In order to establish discrimination, the applicant would need to prove a connection between the adverse treatment he received and a Code ground. In the context of a summary hearing, this means the applicant must be able to point to evidence that could establish that connection. The applicant has, however not been able to point to any proposed evidence that would support a connection between the hospital’s response to his draft article and his race, colour, ethnic origin or place of origin, and for that reason I find this allegation has no reasonable prospect of success.

Complaint to Hospital

45The applicant further alleges that his complaint to the hospital’s Patient Relations department was dismissed for discriminatory reasons. His basis for this is his claim that the hospital did not conduct the investigation with “true diligence”, and that he did not obtain the remedy he sought.

46The fact, however, that the hospital’s internal investigation did not have the result he wanted does not mean the investigation was therefore discriminatory. There must be some evidence that the complaint was dismissed for a discriminatory reason. Again, however, the applicant has not been able to point to any such evidence.

47The 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.

48In general, the applicant has not been able to point to anything other than his own beliefs or assumptions that the hospital’s suggestion that he may want to do more work on the column was in any way connected to a Code ground. Similarly, he has not been able to point to any evidence to support his claim that the investigation was discriminatory.

49For these reasons, I find that the Application must be dismissed against the hospital as having no reasonable prospect of success.

Order

50The Application is dismissed.