Smith v. George Brown College, 2016 HRTO 491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fiona Smith

Applicant

-and-

George Brown College

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: April 19, 2016

Citation: 2016 HRTO 491

Indexed as: Smith v. George Brown College

APPEARANCES

Fiona Smith, Applicant

Self-represented

George Brown College, Anne-Marie Stoneburgh, Molly Marrack, And Jennet Cox, Respondents

Patricia G. Murray, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with to respect to contracts because of race, colour and ethnic origin.

2The organizational respondent is George Brown College. The applicant was a student at the material time.

3On June 16, 2016, the Tribunal issued a Case Assessment Direction (“CAD”) advising the parties that a summary hearing would be held by teleconference to determine whether the Application should be dismissed in whole or in part for “no reasonable prospect of success”. The CAD provided the parties with a comprehensive description of the summary hearing process and the issues they would be required to address. Oral submissions were heard on March 2, 2016.

4The role of the applicant in the summary hearing is to describe to the Tribunal the evidence she intends to rely on to support her belief that she experienced discrimination. The Tribunal’s role is to consider whether the allegations fall under the Tribunal’s authority and whether there is evidence which will reasonably be available to support the allegations. Where the applicant believes that she has been a victim of discrimination, but is unable to point to evidence which would support that belief, her application will be found to have “no reasonable prospect of success”.

5While the primary focus in the summary hearing is on the applicant’s evidence, the respondent’s explanation may be considered where the parties agree on 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.

6The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services, contracts or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least 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.

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. At this stage, the Tribunal assumes that the applicant is telling the truth unless there is clear evidence to the contrary which the applicant does not dispute. However, that does not mean that the Tribunal accepts the applicant’s assumptions and beliefs about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s assumptions and beliefs that the unfair treatment they experienced arises from a prohibited ground under the Code. Making this connection is an important part of proving discrimination.

8In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that the ground 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, an application may be found to have no reasonable prospect of success.

9If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that an application has no reasonable prospect of success, it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of an application will move ahead, while part is dismissed.

ANALYSIS

10The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the application should proceed. Specifically the applicant was asked to assist the Tribunal in understanding how she came to believe that the incidents she is alleged to have experienced are connected to her race, colour and/or ethnic origin. The applicant self-identifies as a Caucasian person of Irish heritage. The applicant indicated that she understood the instructions she received and the issues she was asked to address in the summary hearing.

11The respondents made oral submissions supporting their position that the Application should be dismissed in its entirety.

12The applicant alleges that on November 25, 2013, she was attending a class at George Brown College when she became involved in an unpleasant interaction with the student next to her who accused her of “smelling”. The applicant alleges that the facilitator did not manage the situation properly and also made the comment “Jesus Christ Fiona, we are all adults here, move your ass.”

13During her oral submissions the applicant was asked how this incident relates to the fact that she is Caucasian and of Irish heritage. She speculated that the “smelling” comment may have been based on a stereotype about Irish people and alcohol. She further speculated that the “Jesus Christ” comment might also be considered religious discrimination. The applicant argued that the College did not respond effectively to her concern that the respondent had failed to foster a healthy learning environment as required by policy.

14Having carefully considered the applicant’s allegations, I find that there is no reasonable prospect that the applicant can succeed under the Code. The applicant’s allegations are based on the speculation that there is a connection between what she experienced and her race, colour and ethnic origin, rather than evidence which would reasonably be available to the applicant to prove this connection.

15There was an issue of delay raised at an earlier stage in this proceeding. The applicant produced a fax page which appears to indicate that her application was filed within the one-year limitation period. I have not found it necessary to deal with this issue.

16There were five individual respondents named in the Application. Two of the individually named respondents were students. There is insufficient evidence before me that either of these two individuals have received notice of the application. These individuals are entitled to notice and the obligation to provide notice ultimately rests with the applicant. In the absence of notice it would be unfair to consider the allegations as against these two individuals and they are removed on that basis. In the circumstances, I do not consider it necessary or useful to name these two individuals. Given my conclusion on the issue of notice it is unnecessary to decide whether the relationship between the applicant and two other students was otherwise engaged by the Code. The other three individuals were employees of the organizational respondent. To the extent there were any specific allegations at all against these three individuals, my reasons above apply equally and the application is dismissed in its entirety as against them. For clarity, the Application is dismissed against Anne-Marie Stoneburgh, Molly Marrack, and Jennet Cox.

Order

17The Application is dismissed.