Powless v. Ontario Lacrosse Association, 2016 HRTO 786

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Todd Powless

Applicant

-and-

Ontario Lacrosse Association, Sonya Crossey,

Marion Ladouceur and Tina Manning

Respondents

DECISION

Adjudicator: Mary Truemner

Date: June 8, 2016

Citation: 2016 HRTO 786

Indexed as: Powless v. Ontario Lacrosse Association

APPEARANCES

Todd Powless, Applicant

Self-represented

Ontario Lacrosse Association, Sonya Crossey, Marion Ladouceur, and Tina Manning, Respondents

Kayla Kwinter, Counsel

Introduction

1This Application, as originally filed on August 20, 2015, alleges discrimination with respect to services because of race and ancestry contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant was a lacrosse coach for the Oshawa lacrosse club. The Oshawa lacrosse club initiated a process whereby the Ontario Lacrosse Association (“OLA”) Zone 6 Discipline Committee suspended the applicant for “tampering” as a result of the applicant allowing an athlete on the floor to “try-out” for an intermediate team with the Oshawa lacrosse club when he was not registered with that club, and was not released from the Whitby lacrosse club, the club with which he played the year before. The applicant appealed the discipline to the OLA, but the suspension was upheld.

3The personal respondents all held positions of authority with the OLA and/or with the Oshawa Minor Lacrosse Association.

4The Application alleges that the discipline committee’s proceedings, their finding that he breached the rules, the suspension and the appeal at the OLA were unfair for a variety of reasons, but none of those reasons listed in the Application appeared to be because of race and ancestry.

5The respondents filed a Response and then the applicant filed a Reply which states that the respondents knew he is Aboriginal, and ought to have applied a “high standard duty of care” when applying disciplinary measures to him so as to prevent the loss of his “cultural, spiritual and ceremonial relationship” with the game of lacrosse given the historical significance of the game for Aboriginal peoples.

6The respondents requested a summary hearing to dismiss the Application as having no reasonable prospect of success.

7The Tribunal granted the respondents’ request for a summary hearing, which was scheduled to deal with whether the Application should be dismissed because: 1) allegations of discrimination were untimely; 2) another proceeding had appropriately dealt with the substance of the Application; or 3) there was no reasonable prospect of success for the Application or part of it to succeed.

8At the commencement of the summary hearing, a Request for Order During Proceedings previously filed by the applicant was granted on consent so that the Application was amended to include the ground of creed.

Delay

9Section 34(1) of the Code states that a person may file an application within one year after the occurrence of the incident, or the last incident in a series of incidents, to which the application relates.

10At the summary hearing, the applicant explained that the first alleged violation of the Code occurred on April 23, 2015, when the respondents indefinitely suspended the applicant for allowing an unregistered player on the field. Given that this and the subsequent alleged adverse treatment by the respondent is within one year of the applicant filing his Application, delay is no longer an issue.

No Reasonable Prospect of Success

11Rule 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.

12In 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.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

13In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to proceed, 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.

Allegations under Section 1

14Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

15At the summary hearing, the applicant self-identified as Mohawk. He explained that on April 21, 2015, his assistant coach brought a son to the try-outs at the Oshawa lacrosse club. The applicant knew his assistant coach’s son had been playing with the Whitby lacrosse club the year before, but the applicant allowed the son to play during the Oshawa intermediate team try-outs, even though he was not registered with Oshawa. The applicant explained that he believed that the assistant coach’s son, who originally belonged to the Oshawa club, and should not have been released by Oshawa “unconditionally”, but instead should have been only temporarily or “conditionally” released from the Oshawa club when he went to Whitby the year before.

16The applicant received notice April 23, 2015, two days later, that informed him that he was suspended until a discipline committee could deal with the matter of him allowing at least one athlete on the floor who was not released, and not registered. The applicant argued that he had never seen the respondents suspend someone as quickly as they did him. He said that a non-Aboriginal coach of the Bantam team, who allowed an unregistered player on the floor or field in a similar situation, was not suspended, although the applicant admitted that the player’s mother was suspended.

17The applicant also believes that the respondents misapplied their own rules during the discipline process, for several reasons, including their misapplication of the rule concerned with who is allowed to play lacrosse rather than to try out for a team. He also believes that the disciplinary process was procedurally unfair, and that it denied him due process, so that, for example, the respondents allegedly denied the applicant’s request to see the evidence against him, and there seemed to the applicant to be no evidence presented by the respondents that would justify a suspension.

18There is nothing in the applicant’s written or oral submissions which would enable me to conclude that the applicant’s race, ancestry or creed was one of the reasons for the respondents’ suspension of the applicant. It seems clear that the suspension resulted from the applicant’s breach of the rules. The applicant’s example at the summary hearing of the situation of the Bantam coach, who was not Aboriginal and who did not receive any discipline, was not described at the summary hearing as sufficiently similar to the applicant’s situation, given the involvement of the player’s mother in the Bantam case, who was suspended. I do not see how that example might reasonably support the applicant’s allegation that the respondents treated him differently in a similar situation because of race, ancestry or creed.

19The applicant has his own interpretation of some of the respondents’ rules, but insofar as the respondents’ interpretations are different, I see no link between that difference and the applicant’s personal characteristics linked to the Code grounds he cites. Even if the respondents had not been fair in applying their rules to discipline the applicant, as alleged, the applicant pointed to no evidence to link such unfairness with race, ancestry or creed. The Tribunal only has jurisdiction, as stated above, to deal with unfairness in the sense of discrimination related to the grounds listed in the Code. The Tribunal does not have jurisdiction to inquire into claims of unfairness if the grounds listed in the Code are not engaged. See Dabic, above.

20The applicant also explained at the summary hearing that he asked at the appeal hearing of his suspension if the respondents would deny an Aboriginal man the right to play lacrosse, and they ignored his question. He argued that his Aboriginal status involves a strong and important cultural and spiritual bond with lacrosse, the respondents knew that it did, and therefore the respondents should have altered the discipline or, in some way, they should not have enforced the decision to suspend him.

21I disagree with the applicant’s attempt to focus on the penalty for his breach of the respondents’ rules, without first analyzing why, and under what circumstances, the Association imposed the penalty.

22Even accepting the applicant’s position that the bond between Mohawk people and lacrosse is integral to his ancestral and spiritual identity, and that the applicant’s spiritual affiliation with lacrosse is genuine, I see no reasonable prospect of success for his allegation of discrimination related to that bond. I say this because the suspension is a result of the applicant’s conduct, and the applicant does not allege that his conduct of allowing the assistant coach’s son to try out was related to his race, ancestry or creed.

23The discipline was that the applicant was suspended from playing and/or coaching organized lacrosse through the OLA for one year. The applicant did not point to any evidence that might be used to establish that his creed, race and/or ancestry required playing or coaching lacrosse only with an organized provincial club, under the auspices of the OLA. The applicant did not point to any evidence that the suspension from coaching and/or playing organized lacrosse with the respondents would prevent him from engaging with lacrosse elsewhere for one year, for example in a recreational context, to fulfill what is required for his creed, race and/or ancestry.

24In conclusion, I find that the applicant has no reasonable prospect of success with the allegation that the respondents suspended him or were procedurally unfair to him, as alleged, because of his race, ancestry or creed. He did not advise the Tribunal of any evidence he has or would have to establish that his race, ancestry or creed was one of the reasons for the respondents’ actions and decisions, nor was he able to link those grounds to how his case was processed by the respondents.

whether another proceeding had appropriately dealt with the substance of the Application

25Having found that the Application has no reasonable prospect of success, I do not need to address whether another proceeding, the OLA’s appeal process, has appropriately dealt with the substance of the Application.

order

26The Application is dismissed.