Human Rights Tribunal of Ontario
B E T W E E N:
Mario Bozic Applicant
-and-
Brampton Tennis Club Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Bozic v. Brampton Tennis Club
WRITTEN SUBMISSIONS
Mario Bozic, Applicant Michael B. Lesage, Counsel
Brampton Tennis Club, Respondent Alex Van Kralingen, Counsel
Introduction
1This Application filed on December 3, 2015, alleges discrimination with respect to services because of gender identity, gender expression and sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
Background
2The applicant was a member and played tennis at the respondent's club. He alleges that several other members, also tennis players, interacted with him badly in certain matches because of the grounds cited in the Application. The first interaction described in the Application appears to related to an altercation during a match on August 25, 2013, when the applicant's opponent pushed the applicant with his shoulder, having earlier called the applicant a "faggot". There were two more incidents described in the Application over the next year and a half. The Application describes how the club allegedly did not protect him from the conduct of the other tennis players, and then excluded him from the club premises, allegedly as reprisal for the applicant's complaints about the perceived discrimination by the other members and about the club's inaction.
Request for Order
3The respondent filed a Request for Order During Proceedings seeking an order that strikes all or part of the Reply for the reason that it appears to contain new allegations to which the respondent has not had an opportunity to respond. Also the respondent argues that the new allegations implied in the Reply are out of time so that any amendment, implicit or explicit, to add the allegations should be dismissed under section 34(1).
4The applicant filed a Response to a Request for an Order, taking the position that the Reply does not add new allegations of Code violations, but instead further particularizes allegations that the Application already raised, and that the Reply also answers to what was raised in the Response. The applicant also argues that the incidents the respondent is characterizing as untimely should not be dismissed for delay because they are part of a series of events. The applicant urges, in the alternative, that the decision whether they are untimely not be made without the benefit of a full evidentiary record.
Deny request to strike new allegations in reply
5While the respondent urges that the Application alleges nothing more than reprisal, (the exclusion of the applicant from the club as per the letter it sent to him on May 11, 2015), I am satisfied that it alleges more:
- On page 7 of the Application, the applicant wrote, "I was subject to a pattern and practice of illegal discrimination at the Respondent's Premises and Facility that has continued for several years, culminating in my exclusion from the facility due to my sexual orientation, gender identity and/or gender expression."
- On page 15, the applicant stated that he is complaining about a practice of the respondent because it "permitted and condoned discrimination at its facility as set forth above." Also on page 15, he wrote, "No steps were taken to remedy the discrimination."
- On page 17, the applicant wrote that he believes he was discriminated against because of his sexual orientation because, "As set forth above, the Club was indifferent to homophobic conduct at its facilities (including assaults) and in its activities..."
6The Application alleges that the respondent, by its action or inaction, condoned allegedly discriminatory conduct against the applicant by his fellow tennis players, and failed to protect him from that conduct. This allegation is given more attention in the Reply, but I deny the request to strike those portions in the Reply given that they were raised in the Application.
7If the respondent feels that there is something that it would like to further address in its Response, in answer to the now clarified allegations, then the respondent must file an amended Response within 21 days.
8It is not clear to me that the Application alleges that the respondent is responsible for the alleged discriminatory actions and words of the tennis players involved in the altercations, regardless of how the respondent might have reacted. My understanding is that the description of the altercations is context for the allegations with respect to the respondent's alleged failure to protect the applicant from discriminatory conduct and its condoning of that conduct. The applicant is directed to confirm my understanding within 14 days. If the applicant does not confirm my understanding, then he must file an explanation within 14 days as to how the respondent might be held responsible for the tennis players' allegedly discriminatory conduct.
Defer Request to dismiss allegations for delay
9The respondent seeks an order dismissing any allegations that are related to the respondent allegedly condoning discriminatory conduct of tennis players, and failing to protect the applicant, because they occurred more than a year prior to the applicant filing the Application. It is premature at this stage to decide whether they are part of a series of incidents or whether they might be dismissed for delay. It appears to me, at this stage, that evidence with respect to the other tennis players' conduct is relevant to the issue of reprisal, and will be required in any event. The respondent may pursue its request to dismiss allegations for delay at the hearing, but the Tribunal may choose not to make its decision about the timeliness issue until after the hearing in order to first review the evidentiary record.
Tribunal's next step
10The Tribunal will schedule a two-day hearing. The Notice of Hearing will refer to the Tribunal's Rules of Procedure and advise the parties as to their obligations prior to the hearing.
Dated at Toronto, this 11th day of April, 2016.
"Signed by"
Mary Truemner Vice-chair