Generao v. Luxottica Retail Canada Inc., 2016 HRTO 593

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Generao

Applicant

-and-

Luxottica Retail Canada Inc. c.o.b. as LensCrafters,

and Paragon Security

Respondents

• and –

Chris Perera

Applicant

-and-

Luxottica Retail Canada Inc. c.o.b. as LensCrafters,

and Paragon Security

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 4, 2016

Citation: 2016 HRTO 593

Indexed as: Generao v. Luxottica Retail Canada Inc.

APPEARANCES

Christine Generao and Chris Perera, Applicants

Self-represented

Luxottica Retail Canada Inc. c.o.b. as LensCrafters, Respondent

Cherrine Chow, Counsel

Paragon Security, Respondent

Daniel Chodos and David Whitten, Counsel

1The applicants alleged that the respondents discriminated against them because of race, colour, ethnic origin, sex (pregnancy), age and association with a person identified by a protected ground contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). They also alleged that they were reprised against within the meaning of the Code. The allegations raised in the Application relate to an incident where the applicants were accused of shoplifting while shopping for eyeglass frames.

2The two respondents against which the Application remains active are the store where the applicants were shopping, operated by Luxottica Retail Canada Inc. (“LensCrafters”), and the security company for the shopping center where the store is located (“Paragon Security”). In their Applcations, the applicants appeared to restrict their allegations of discrimination against Paragon Security to the grounds of age, sex (pregnancy) and association with a person identified by a Code ground. However, they confirmed in the summary hearing that they intended to allege discrimination on the basis of all of the grounds listed in the Application against both respondents.

3By Case Assessment Direction, the Tribunal granted a request for a summary hearing filed by Paragon Security. It directed that a summary hearing be held with the respondents to address whether the Application, or any part of it, should be dismissed on the basis that there is no reasonable prospect that the Application, or any particular part of it, will succeed.

4For the reasons that follow, I find that the applicants reprisal allegations must be dismissed on the basis that they stand no reasonable prospect of success. However, at this stage, I find that it is not appropriate to dismiss the applicants’ allegations that the respondents discriminated against them based on the grounds listed in their Applications. In the circumstances of this case, it is necessary to hear evidence from the parties in order to determine the discrimination allegations raised by the applicants.

Summary Hearing Process

5The purpose of a summary/preliminary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code, can leave a person with significant financial and emotional damage, not too mention a good deal of frustration. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

7The Tribunal does not hear any actual evidence (testimony) in a summary hearing. The 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 or she 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.

8However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she 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 or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

9As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), 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.

Factual Background

10In light of my finding that the applicants’ discrimination allegations should not be dismissed at this preliminary stage, I provide only a brief summary of the factual background to the Application.

11The applicants allegations relate to the way they were treated by representatives of the respondents. They claim that they were profiled based on their race and the other grounds listed in the application. As noted above, they also claimed that they were subject to reprisal. Their allegations relate generally to being approached and accused of shop lifting by representatives of both respondents, being banned from the store and threatened with a trespass notice, and general adverse treatment on the day in question.

Analysis

Reprisal Allegations

12The reprisal protections in the Code do not protect against all forms of retaliation or adverse treatment. They only protect against reprisals for having taking certain actions linked to the Code.

13Section 8 sets out the Code’s protections against reprisal. It states as follows:

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.

14In order to make out a claim of reprisal, the applicant must be able to establish that the respondents intended to reprise against him for claiming or enforcing his rights under the Code. See Noble v. York University, 2010 HRTO 878.

15The applicants claimed that Paragon Security reprised against them when one of the security guards refused their request for police assistance. They also claimed that the General Manager of Lenscrafters reprised against them when she refused to meet with them upon their return to the store after being approached by representatives of both respondents in the food court of the shopping mall.

16I find that netiher of these claims of reprisal have a reasonable prospect of success under the Code. The applicants provided no information that would suggest that these actions were undertaken in order to retaliate against them for claiming or enforcing their rights under the Code, for instituting proceedings under the Code or for refusing to infringe the rights of another person under the Code. Accordingly, the applicants’ reprisal allegations must be dismissed on the basis that they stand no reasonable prospect of success.

Discrimination Allegations

17Rule 19 A.6 provides that where the Tribunal decides not to dismiss the Application it need not provide reasons. However, I find it appropriate to provide the following brief reasons for my conclusion that the applicants discrimination allegations cannot be dismissed at this stage on the basis that they stand no reasonable prospect of success.

18In the past, the Tribunal has dismissed Applications alleging racial or other types of profiling if applicants cannot point to any evidence reasonably available to them, that could establish discrimination. In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that, in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge or posession of a respondent.

19Summary hearings do not involve the hearing of any evidence. In my view, in order to address the refutation of the applicants’ allegations, a hearing on the merits must be held in which the Tribunal hears evidence from the parties. Allegations of profiling based on race or other grounds involve close attention to all the surrounding facts. I do not agree with the respondents that the applicants have simply made bald allegations of discrimination in this case. In light of the alleged facts as related by the applicant, I cannot dismiss the applicants’ allegations of discrimination against either respondent at this stage on the basis that they have no reasonable prospect of success.

20In particular, there appears to be a dispute between the respondents as to which respondent bears responsibility for the events set out in the Application. While Lenscrafters states that it was one of the security guards who raised the issue of a trespass notice, Paragon argued that it was simply acting on directions provided by Lenscrafters. Counsel for Paragon Security submitted that it was more probable that the issue of a trespass notice was raised by a representative of the store since Paragon Security allegedly had no authority to issue such a notice. It is possible that that is in fact the case. However, having not heard any evidence at this point, I am not in a position to make a finding as to what is more probable than not.

21As well, I note that the applicant’s allegations against the respondents appear to extend beyond the issue of the trespass notice to general mistreatment due to profiling based on race and the other grounds listed in the Application. The applicants claim that representatives of both respondents accused them of shoplifting based on their viewing of a video at the store. In these circumstances, I do not consider it appropriate to find there is no reasonable prospect of success against Paragon Security at this preliminary stage of the proceeding.

22For the reasons set out above, I find it necessary for the Tribunal to hear evidence from the parties in order to determine this case. Based on the nature of the allegations and the alleged facts as provided by the applicants, I cannot find that this Application has no reasonable prospect of success under the Code.

order

23For the reasons set out above, the Tribunal orders as follows:

a. The reprisal allegations in the Applications are dismissed on the basis that they have no reasonable prospect of success.

b. The applicants allegations of discrimination because of race, colour, ethnic orgin, sex (pregnancy) and association with a person identified by a Code ground are not dismissed at this stage. Those parts of the Applications will proceed in the Tribunal’s usual process.