Shirley v. Staples Canada Inc., 2016 HRTO 521

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Othniel Shirley

Applicant

-and-

Staples Canada Inc.

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: April 21, 2016

Citation: 2016 HRTO 521

Indexed as: Shirley v. Staples Canada Inc.

APPEARANCES

Othniel Shirley, Applicant

Self-represented

Staples Canada Inc., Respondent

David Burt, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges he experienced discrimination with respect to services because of race, colour and reprisal.

2In a Case Assessment Direction (“CAD”) issued on October 5, 2015, the Tribunal directed that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in the summary hearing was whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the applicant could demonstrate that there is a connection between the alleged actions of the respondent and the Code grounds that he cites. The CAD advised the applicant that during the summary hearing he would need to provide details of the evidence he intended to rely on to show the link between the respondent’s actions and his race or colour or that the respondent’s actions amount to reprisal under the Code.

3At the commencement of the summary hearing, I explained that the focus of the summary hearing was on the question of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. I invited the applicant to explain why he believes the respondent’s acts amount to discrimination under the Code.

4During the summary hearing, I heard submissions from the applicant and from counsel for the respondent.

THE FACTS

5For the purpose of a summary hearing, the Tribunal is to accept that the facts as alleged by the applicant are true.

6The applicant alleges the following facts. He was in the respondent’s store when he saw someone he thought he knew in the line of a cashier. He approached the person and said “Hello. How are you?” The cashier butted in to the conversation to say, “Don’t you see she does not want to talk to you?” The applicant responded, “I am not talking to you”. The cashier then called the manager who told him that he had to leave and then called the mall’s security office.

7The manager then approached him and said that the cashier told him the applicant was harassing a customer. The manager told the applicant that he had to get off the premises. The applicant responded that he was in the store to shop, and that he shopped at the store often. The manager just repeated that he wanted the applicant off premises or he was going to call security.

8The applicant then got frightened and feared for his life. He was shocked and not able to comprehend. He just kept asking, “Why are you doing this? How am I harassing the young lady?” The manager would not answer him about what he had done that amounted to harassment. The whole time he was talking to the cashier and the manager, the applicant never heard the customer say anything so he questions how they could have interpreted his interaction with the customer as harassment.

9He left the store before security arrived.

10The applicant submits that because he is male, and is aboriginal with dark skin, the cashier and the manager assumed that he was harassing the customer when he was not harassing her. He claims that the other customer got the service she needed but through their misunderstanding, which then turned into harassment and favouritism, he was not provided the same service as he was not allowed to purchase the items he had intended and that this amounts in differential treatment based on his race and colour.

11The applicant provided no details of any evidence he had or would have that could demonstrate that the treatment he received from the respondent was reprisal for his attempts to enforce his Code rights.

12The respondent submits that the applicant is relying on his own subjective belief that he experienced discrimination and his subjective belief is not sufficient to demonstrate that he will have a reasonable prospect of succeeding in proving his Code rights were breached. The applicant must prove not only that he was mistreated when he was in the store on May 21, 2014, but also that the mistreatment is connected to his race, colour or that it was a form a reprisal.

ANALYSIS

13Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

14In Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

15I find that the applicant does not have a reasonable prospect of proving that his rights under the Code have been violated. He did not advise the Tribunal of any evidence he has or would have to establish a link between the respondent’s actions and his race or colour. As well, the applicant has made no allegations that could be found to be reprisal as defined under the Code.

16In considering these issues, I am mindful that the Tribunal does not have the general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds: Dabic, above.

17In addition, as 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 discrimination on the basis of one of the grounds alleged in the Code.

18The applicant’s allegations of discrimination as set out in the Application, and as stated during the summary hearing, are based on his belief that he was unfairly accused of harassing a customer and that the reactions of the respondent’s employees were related to the fact that he is a dark-skinned and aboriginal male.

19The applicant has made general allegations based on his own belief about why the respondent’s employees acted the way they did. Even if I were to accept that he could demonstrate that he was treated differently, without any evidence that this treatment was connected to his race or colour, I cannot find that he has a reasonable prospect of proving the link between his race or colour and this alleged differential treatment. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at para. 25:

(...) discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground.

20The applicant has pointed to nothing beyond his own belief to suggest that his race or colour were a factor in the way the respondent’s employees responded to the situation.

21Having considered all the information before me, I find that there is no reasonable prospect that the Application will succeed. The Application is therefore dismissed.