Sun v. State Farm Mutual Automobile Insurance Company, 2016 HRTO 649

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hai Sun

Applicant

-and-

State Farm Mutual Automobile Insurance Company and Karen Parks

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: May 13, 2016

Citation: 2016 HRTO 649

Indexed as: Sun v. State Farm Mutual Automobile Insurance Company

APPEARANCES

Hai Sun, Applicant

Self-represented

State Farm Mutual Automobile Insurance Company and Karen Parks, Respondents

Mark Gelowitz and Karin Sachar, Counsel

Introduction

1The Application alleges that the respondents discriminated against the applicant contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions that the respondents treated the applicant in a Code related discriminatory manner.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The 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.

7However, and significantly, 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 if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As 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, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant had car insurance coverage provided by the institutional respondent (“State Farm”). He was in a minor automobile accident. State Farm decided that the applicant was 100% liable for damages arising from the car accident. The applicant claims that State Farm’s decision was made without sufficient evidence and that it was based on an inaccurate and inconsistent eye witness account. The applicant alleges that this decision was motivated by the applicant’s race and constituted “race discrimination”.

11The respondents’ position is that State Farm made an objective decision that the applicant was 100% liable for the damages based on an accurate independent witness account and the applicant’s refusal to provide photographs of his vehicle in order to demonstrate there was no damage to his vehicle. The respondents maintain that the decision was in no way based on the applicant’s race.

Findings

12As noted above, for an application to advance to a full hearing on the merits, the applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly stated that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

13The applicant’s grievance is with State Farm’s determination that the applicant was fully responsible for the damages arising from the auto accident. Even if this determination was wrong, other than a bald assertion that because he is of Asian origin and State Farm determined that he was 100% responsible for the damages arising from the auto accident, there are no additional facts or allegations which, if accepted as true, provide the necessary nexus between the impugned decision of State Farm and Code grounds.

14In his narrative of his Application the applicant wrote: “What they did were (sic) unfair and unreasonable.” However, the Code is not designed to remedy all instances of perceived unfairness. The alleged treatment must be linked in a substantive way to a Code ground. The applicant must show more than mere subjective suspicion or speculation to establish a link between the respondents’ alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.

15Accordingly, I find that this Application has no reasonable prospect of success.

Order

16For the above reasons the Application is dismissed.