HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Xiao Su Xu
Applicant
-and-
Toronto Parks Forestry and Recreation, Janie Romoff, Howie Dayton, Tracy Shand and Mike Krabi
Respondents
DECISION
Adjudicator: Jacek Janczur
Indexed as: Xu v. Toronto (Parks Forestry and Recreation)
APPEARANCES
Xiao Su Xu, Applicant
Self-represented
Toronto Parks Forestry and Recreation, Janie Romoff, Howie Dayton, Tracy Shand and Mike Krabi, Respondents
Antonella Ceddia, Counsel
Introduction
1The applicant filed an Application alleging that the respondents discriminated against her in the area of goods, services and facilities on the basis of race, ancestry, place of origin, ethnic origin and reprisal 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 her own suspicions that the respondents discriminated against her on the basis of race, ancestry, place of origin, ethnic origin and reprisal.
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 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 following a summary hearing, 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 has been a volunteer at the Heron Park Community Centre since 2003 where she claims to be the main person who runs the ping-pong program.
11The applicant alleges that she has been subjected to discriminatory treatment in many ways.
12The applicant’s allegations are numerous and include the following:
Katrina, a staff person at the community centre, was rude and uncooperative with her;
the program scheduling was irresponsible;
ping-pong program participants were not allowed to play ping-pong in empty rooms;
she was not provided with extra keys;
fire extinguishers were moved;
she was unable to use the premises for ping-pong on election days; and
clients of the community centre were deliberately provided with misinformation.
13The thrust of the applicant’s allegations are that she was mistreated by staff and that there were restrictions placed on the ping-pong program.
Findings
14Even if I accept the facts put forward by the applicant as true and provable, I find that the Application stands no reasonable prospect of success under the Code. Even if I assume that all of the allegations are true, the applicant has not been able to point to any evidence she could call in a hearing to create a link between the respondents’ actions that she complains of and any of the Code protected grounds that she cites in her Application.
15Neither in her Application, nor in the submissions she made during the summary hearing, has the applicant been able to point to any evidence that could establish a link between any of the prohibited grounds upon which her allegations of discrimination are based.
16The applicant states that Katrina was rude to her. However, she is unable to point to any Code ground at play. In the absence of such a connection, her allegations, even when assumed be true, may be only of general unfairness which do not engage the Code and are therefore beyond the jurisdiction of the Tribunal (see Forde, above).
17The applicant may truly believe that the respondents’ behaviour was the result of discrimination on the basis of race, ancestry, place of origin, ethnic origin and reprisal but she has simply not been able to refer the Tribunal to any evidence that is available, or may reasonably be available, to create an evidentiary link between her allegations and a Code protected ground.
18In a summary hearing, the allegations of the applicant are assumed to be true. I have done so. In doing so, it seems very probable that the restrictions that the applicant complains of were due to the competing demands of other programs and occasional but compelling reasons to use the premises for other reasons, e.g. elections.
19As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.
Order
20For the above reasons, the Application is dismissed.
Dated at Toronto, this 1st day of September, 2017.
“Signed By”
Jacek Janczur
Vice-chair