McEwan v. LAF Canada Company, 2016 HRTO 544

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam McEwan Applicant

-and-

LAF Canada Company, Fitness International LLC and Chris Kelly Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: April 26, 2016 Citation: 2016 HRTO 544 Indexed as: McEwan v. LAF Canada Company

WRITTEN SUBMISSIONS

Adam McEwan, Applicant

Marty Gobin, Paralegal

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”). This Interim Decision deals with the issue of whether the Application should be dismissed because there is a concurrent Small Claims Court action involving some of the same parties and potentially overlapping claims of discrimination under the Code.

2The applicant attached to his Application a copy of the Small Claims Court claim filed on the applicant’s behalf by his representative that is still in progress.

3Prior to delivering the Application to the respondent, on March 8, 2016, the Tribunal delivered to the applicant a Notice of Intent to Dismiss and asked for his written submissions on this issue by no later than April 8, 2016, which the applicant provided.

4The Tribunal advised the applicant that it intended to dismiss the Application on the following basis:

It appears the Application is outside the HRTO’s jurisdiction because:

• a civil proceeding has been commenced in a court in which you are seeking an order under section 46.1 with respect to the alleged Code infringement and the proceeding has not been finally determined or withdrawn, or the court has finally determined the issue of whether the right has been infringed, or the matter has been settled [s. 34(11)]. See for example Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

5Section 34(11) states:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c. 30, s. 5.

Applicant’s submissions

6The applicant submits that the Small Claims Court action, filed on June 19, 2015, does not include claims that are in this Application, namely:

a. a claim of reprisal contrary to s. 8 of the Code that occurred after June 19, 2015; and

b. allegations of discrimination that occurred after June 19, 2015.

7More particularly, the applicant appears to claim in the Small Claims Court action that the district vice-president of the defendant, LAF Canada Company, discriminated against the applicant in March, 2015 by failing to give him credit for a sale because he preferred to take the side of a female employee because he was sexually attracted to her; that he was wrongfully dismissed on June 15, 2015; and that the respondent discriminated against him on the basis of ethnic origin by asking for his ethnicity on his new hire form in November, 2014.

8In this Application, the applicant alleges the respondents reprised against him on July 10, 2015 for commencing his Small Claims Court action, in which he asserted violations of his rights under the Code by terminating the employment of his friend whom he had helped get a job with the respondent company. He further alleges the respondent companies reprised against him by failing to issue his Record of Employment (“ROE”) within the required time period and by indicating when they issued it on July 8, 2015 that the reason for issuing the ROE was “Dismissal”, which ostensibly was to harm the applicant’s reputation. He also appears to allege, although it is not clear to the Tribunal, that the respondents reprised against the applicant because two employees made false statements about the applicant’s prior work performance, and one of the employees attended the applicant’s sister’s place of employment and told her the applicant was terminated because of a bad attitude. The applicant further alleges that this second employee was known to have made crude sexual comments about the applicant’s sister when the applicant was employed at the respondent companies.

analysis and decision

9Although the applicant’s claims are not entirely clear, it appears to the Tribunal that the applicant’s claims in the Application are not the same as those in the Small Claims Court action, given that the claims arise out of alleged events that took place after the filing of the Small Claims Court action on June 19, 2015.

10As such, the Application is not dismissed by virtue of section 34(11) of the Code.

next steps

Summary Hearing

11Having reviewed the file however, the Human Rights Tribunal of Ontario (the “Tribunal”) has decided to hold a summary hearing to determine whether this 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.

12The 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 respondents' adverse treatment of the applicant is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

13Where it appears that all or part of an application may have no reasonable prospect of success the Tribunal may determine it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

14Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.

15Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

16There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because:

a. It appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the ground of reprisal cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain; and

b. The issue the applicant is raising does not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation;

c. The reprisal section of the Code only applies to the actions of respondents that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondent reprised against him for one of these three things.

17At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.

18The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he/she experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

19The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. 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 and be dismissed. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.

20While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondent’s allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is 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.

21The Registrar will schedule a half day summary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half day, not all summary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

For the Summary Hearing

22The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.

23No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

24The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this CAD.

Directions to Respondents

25A copy of the Application is delivered to the respondents with this Case Assessment Direction. The respondents need not file a Response (or Responses) to the Application unless directed to do so by the Tribunal. The respondents must, however, write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Case Assessment Direction, providing or confirming contact information for the person to whom notices and other documents should be delivered.

Deferral

26Although the Small Claims Court proceeding relates to events that occurred earlier than those detailed in the Application, the Small Claims Court proceeding does involve some of the same parties and refer to some of the events in dispute in this Application and is ongoing. There exists the potential if both the Application and the Small Claims Court proceeding run concurrently of contradictory findings of fact.

27Rule 14 of the Tribunal’s Rules of Procedure, provides that the HRTO may, on its own initiative or on the request of a party, defer consideration of an application pursuant to section 45 of the Code.

28In the event that the Application is not dismissed, the parties may make submissions about the appropriateness of deferring this Application pending the conclusion of the Small Claims Court claim.

order

29The Application is not dismissed and will continue in the Tribunal’s process.

30A summary hearing will be scheduled, and the parties will be given an opportunity to make submissions on the summary hearing and also on whether the Application should be deferred if it is not dismissed.