Kowalewski v. Town of Smiths Falls Memorial Community Centre, 2016 HRTO 884

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chris Kowalewski

Applicant

-and-

Town of Smiths Falls Memorial Community Centre

Respondents

DECISION

Adjudicator: David Muir

Date: July 5, 2016

Citation: 2016 HRTO 884

Indexed as: Kowalewski v. Town of Smiths Falls Memorial Community Centre

1This is an Applications filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to the provision of goods and services on the basis of creed.

2In his Application the applicant alleges that the choice of music played in the respondent’s facility is offensive to him and has created a poisoned environment.

3On January 15, 2016, the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction.

4The NOID noted that from a review of the Application it appeared that the narrative failed to identify any specific acts of discrimination in relation to the grounds of discrimination claimed.

5The applicant responded to the NOID. The applicant argued that his grievance was in relation to creed. He cited the Ontario Human Rights Commission’s policy on creed which he argued defined creed as a belief system that is sincerely, freely and deeply held, that is integrally linked to a person’s identity, self-definition and fulfillment and that governs one’s conduct and practices. The applicant identifies as a music lover and does not appreciate what he describes as the noise imposed on him by the respondent when he uses its facility.

6The Application is dismissed.

7Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381, and Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

8As sympathetic as one might be to the issue raised by the applicant, I find that it is plain and obvious that his claim does not relate to creed or any other ground of discrimination prohibited by the Code. The applicant identifies as music lover. He appreciates classical, baroque and romantic music. He does not appreciate much modern music. The music played at the respondent’s facility is, according to the applicant, offensive to him.

9The applicant relies on OHRC policy. The Tribunal has had occasion to consider a claim of creed discrimination recently. In Barker v. St. Elizabeth Health Care, 2016 HRTO 94, the Tribunal adopted the test articulated in a decision of the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, as follows at para. 9:

I stated that, while the Amselem decision references the Quebec Charter and the Canadian Charter, the Supreme Court’s description of the ambit of the right to be free from religious discrimination applies equally under the Ontario Code. In order to engage the protection of the Ontario Code against discrimination because of creed, an applicant must demonstrate that he or she sincerely believes that a certain practice or belief is experientially religious in nature in that it is either:

a. objectively required by the religion, or

b. that he or she subjectively believes that it is required by the religion, or

c. that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion.

See Clipperton-Boyer v. RedFlagDeals.com, 2014 HRTO 1796 at paras. 15-16.

10As sincerely held as the applicant’s views are, and despite the depth of his appreciation for the Western musical heritage, there is clearly no religious component to his deeply held views or to put it another way the applicant has not alleged any connection between his love of a particular kind of of music and a his “personal subjective connection to the divine.” . The applicant’s claim is plainly and obviously not in relation to a creed and accordingly the Tribunal has no jurisdiction over this Application.

11For all of these reasons I find that it is plain and obvious that this Application is outside of the jurisdiction of the Tribunal to decide and accordingly it is dismissed.