Brenda Everall v. Deana Donovan, 2016 HRTO 957

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Everall Applicant

-and-

Deana Donovan Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: July 21, 2016 Citation: 2016 HRTO 957 Indexed as: Everall v. Donovan

APPEARANCES

Brenda Everall, Applicant Self-represented

Deanna Donovan, Respondent Alexandra Mayeski, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against her because of creed contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondent, who is the Minister at her church, discriminated against her when she forced her to leave the church when she attended on December 7, 2014.

2By Case Assessment Direction, 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.

3For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. There is no reasonable prospect that the applicant will be able to establish the kind of link between the respondent’s actions and her creed that is necessary to establish discrimination under the Code.

Summary Hearing Process

4The 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. The purpose of a summary 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.

5The Tribunal does not have the jurisdiction to address allegations of unfairness or of general harassment that is unrelated to the Code. Many experiences of unfairness, harassment that are not linked to the Code, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination and harassment that are linked to the prohibited grounds 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, 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 applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination, harassment or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any direct or circumstantial evidence, or 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.

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 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.

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

Factual Background

10The applicant attended her church, a Presbyterian church, for many years up to 2012. The applicant stated that she identified as a Presbyterian until the events set out in the Application. In answer to a question in the Application asking her to describe her creed, the applicant stated that she is in a spiritual crisis and that she no longer limits herself to any particular creed, doctrine or dogma.

11The respondent became the Minister of the church in 2007. It is not disputed that the applicant and the respondent disagreed on various issues over the years. In her Application, the applicant stated that the respondent had an obvious problem with her and her efforts to expose systemic child abuse in her community. Among other things, the respondent implemented a program at the church called “Reaching for Rainbows”. According to the applicant, the program is run in partnership with the local Children’s Aid Society (“CAS”). The program is a play-based after school program for girls. The applicant does not support the program’s focus on girls and believes the program generates an imbalance between boys and girls.

12The applicant has also disagreed with the respondent in regards to other issues. In 2012, she filled out a questionnaire circulated by her presbytery, in which she was critical of the respondent’s performance as Minister and her treatment of the applicant. Among other things, the applicant claimed that the respondent threated to call the CAS on her. In or around March 2012, the applicant sought the respondent’s assistance in her dealings with the CAS. The respondent e-mailed the applicant to say that she did not feel like she had the skills or background necessary to advocate on behalf of the applicant with the CAS. The applicant responded by expressing her disappointment and stating that the respondent had chosen to align herself with supporters of child abuse.

13The applicant stayed away from the church for approximately two years. She attended on December 7, 2014 after she had seen an ad in a local newspaper advertising an event that would be attended by the respondent. As it turned out, the applicant mixed up the dates and the event had been held the night before. The respondent ended up telling the applicant that she had to leave the church on December 7, 2014. The respondent alleged that the applicant was emotionally fragile and volatile, causing the respondent to be concerned for her safety and the safety of others within the congregation. The applicant disputed that she posed a threat and alleged that it was the respondent who was rude and hostile toward her on the night in question.

14When I asked the applicant, in the summary hearing, what evidence she intended to rely upon to prove a link between the respondent’s alleged actions and her creed, she stated that she would rely on the respondent’s acknowledgement in its Response that she asked the applicant to leave the church on December 7, 2014. She also stated that she would rely upon the questionnaire she submitted in 2012 which she said was part of the building conflict between her and the respondent. She also stated that she would rely upon her March 2012 e-mail correspondence with the respondent which she said raised creed-related issues.

Applicable Law

15Section 1 of the Code provides, among other things, that every person has a right to equal treatment with respect to services without discrimination because of creed.

16“Creed” is not defined in the Code. The term includes, but is not limited to, "religious creed" or "religion.” Even if the term is broader than religion, it is not without limits. Not every belief, opinion, expression, practice or matter of conscience is a creed under the Ontario Code.

17In its Policy on Preventing Discrimination Based on Creed, the Ontario Human Rights Commission defines creed as a belief system that may have the following characteristics:

a. Is sincerely, freely and deeply held;

b. Is integrally linked to a person’s self-definition and spiritual fulfilment;

c. Is a particular, comprehensive and overarching system of belief that governs one’s conduct and practices;

d. Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence; and

e. Has some “nexus” or connection to an organization or community that professes a shared system of belief.

Findings

18Even if I accept the alleged facts put forward by the applicant as true and provable, I find that she has not pointed to any information that could reasonably establish the kind of link between the respondent’s actions and her creed that is necessary to establish discrimination under the Code.

19The applicant provided several reasons why she believed she could establish the necessary link to her creed that is required to prove discrimination under the Code. First, in her Application, the applicant stated that she believed she was discriminated against because of creed because she was denied the right to worship. The mere fact that the applicant claims discrimination in the provision of religious services is insufficient to establish that she has been discriminated against because of her creed.

20An analogy may assist in illustrating this point. It is useful to analogize the situation in this case to one in which a female applicant claims she was discriminated against because of her sex (gender) by the head of a women’s group of which she is a member. In order to establish sex discrimination in such a scenario, it is not sufficient for the applicant to point to the fact that she was allegedly adversely treated with respect to services offered by a women’s group. In order to establish sex discrimination, the applicant would have to be able to prove that she was treated adversely because of her sex. The mere fact that the services offered by the women’s organization were gender-related would be insufficient to establish that any adverse treatment of the applicant occurred because of her sex.

21Similarly, in order to establish discrimination because of creed in this case, it is not sufficient for the applicant to point to the fact that she was denied the right to worship. The applicant must be able to show that the respondent treated her adversely because of her creed. The mere fact that the services at issue in this case are religious services is insufficient to establish that any adverse treatment of the applicant occurred because of her creed.

22Second, in her Reply, the applicant stated that she believed that she had established a link to her creed because her creed differs from that of the respondent and she was denied equal and fair services by the respondent. The fact that the applicant’s creed may differ from that of the respondent is not sufficient to demonstrate that the respondent’s actions were linked to the applicant’s creed. In several cases, the Tribunal has found that the fact that an applicant and a respondent do not share the same characteristics, such as race or gender, is not enough to prove that an applicant was discriminated against because of those characteristics. See, for example, Gan v. College of Physicians and Surgeons, 2013 HRTO 1888 at para. 29 and Naraine v. Toronto (City), 2011 HRTO 2124 at para. 11. The same reasoning applies in this case.

23Third, the applicant claimed that her disagreements with the respondent over the years were “creed-related”. She then argued that this would establish the link to creed necessary to establish discrimination in relation to the incident in 2014. I do not agree. The applicant stated that the issues discussed in her e-mail exchange with the respondent in 2012 and the issues she raised in the questionnaire she submitted to the presbytery were creed-related. According to the applicant, these issues were part of a building conflict between her and the respondent that led to the respondent’s telling her to leave the church in December 2014.

24The only connections between the e-mail exchange and/or the questionnaire and the applicant’s creed are: (a) the fact that the respondent is a Minister, (b) the questionnaire was circulated by the church’s presbytery and (c) the applicant was critical of the respondent’s performance as Minister. This is not the kind of link to creed that is necessary to make out a claim of discrimination under the Code.

25This point can be illustrated by returning to the analogy above. The mere fact that a female applicant and the head of a women’s organization disagree about various issues, including issues related to the organization, does not make their disagreement sex or gender-related. Their disagreement is only linked to sex in the sense that the organization is a women’s organization. Similarly, if the applicant in the scenario criticized the job performance of the head of the women’s organization, this would not, in and of itself, make her criticisms sex-related. Even if the applicant’s criticisms could be viewed as sex-related in the sense that they pertain to the functioning of a women’s organization, these criticisms, on their own, could not reasonably give rise to an inference that any subsequent conduct by the head of the organization against the applicant occurred because of her sex.

26Similarly, in this case, the mere fact that the respondent is a Minister and the questionnaire was submitted to the presbytery does not make the issues raised in those documents creed-related in the sense that is necessary to establish discrimination under the Code. The e-mail correspondence between the applicant and the respondent in March 2012 deals with the respondent’s decision not to advocate on the applicant’s behalf in her dealings with the CAS. This is not a creed-related issue. The applicant did not seek to argue that her views about the CAS amounted to a creed. If she had, I would have no hesitation finding that they do not fall within the ground of creed as described above. The only way in which the e-mails can be said to be creed-related is the fact that the respondent is a Minister. This is not the kind of link to creed that is necessary to make out a claim of discrimination under the Code. In any event, the mere fact that the respondent declined to advocate on behalf of the applicant with respect to the CAS cannot reasonably give rise to an inference that the applicant’s creed had any connection to why the respondent told the applicant to leave the church in 2014.

27Likewise, the issues the applicant raised in the questionnaire she filled out related to the respondent’s performance in her role as Minister and the applicant’s belief that the respondent did not provide her with necessary care and assistance when she needed it. Again, these views are not creed-related in the sense required to give rise to discrimination under the Code. The only way in which the applicant’s criticisms in the questionnaire are creed-related is the fact that the questionnaire was circulated by the presbytery and dealt with the respondent’s performance as Minister. This is not the kind of link to creed that is necessary to make out a claim of discrimination under the Code. In any event, the mere fact that the applicant criticized the respondent’s job performance and her work within the church cannot reasonably give rise to an inference that the respondent treated the applicant adversely in December 2014 because of her creed. In other words, the mere fact that the applicant criticized the respondent’s job performance cannot reasonably give rise to an inference that the respondent treated the applicant differently due to the fact that she is in a spiritual crisis and no longer limits herself to any particular creed, doctrine or dogma.

28For the above reasons, I find that the applicant has not pointed to any information that could reasonably establish the kind of link between the respondent’s actions and her creed that is necessary to establish discrimination under the Code.

Order

29In light of the above, the Application must be dismissed.