K.A. v. Douzenis, 2017 HRTO 1232

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K.A., by her litigation guardian, M.P.

Applicant

-and-

George Douzenis

Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur

Date: September 20, 2017

Citation: 2017 HRTO 1232

Indexed as: K.A. v. Douzenis

APPEARANCES

K.A., Applicant

M.P., Litigation Guardian

George Douzenis, Respondent

Carla Black, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against her in the area of goods, services and facilities on the basis of ancestry, place of origin and ethnic origin 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 because it appeared that there was no connection between the allegations against the respondent and a Code protected ground; and because it appeared that the issue raised by the applicant did not fall under the Code. I heard the parties' submissions on June 1, 2017. For the reasons below I have decided that the Application should proceed.

Summary Hearing Process

3The 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.

4The 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.

5The 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.

6However, 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 or reprisal 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.

7As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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.

8Having 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

9The applicant was a student at a school in the Peel District School Board.

10The respondent was a teacher at the school. The applicant was a student in the respondent’s history class. This class took place in the second semester of the school year commencing on or about January 30, 2015.

The History Class Incident

11The applicant alleges that at the beginning of the course, the respondent asked students to tell him three things about themselves so that he could get to know them better. The applicant told the respondent, among other things, that she was of Serbian descent.

12The applicant alleges that, when teaching a class that dealt with the outbreak of the First World War, the respondent referred to Gavrilo Princip, the man who shot and killed the Archduke Franz Ferdinand, as a terrorist. The applicant expressed the view that Princip was a freedom fighter, as opposed to a terrorist, to which the respondent said, “That’s the opinion of a Serb. In this class we will be calling him a terrorist.” The respondent denies that he said this. However for the purposes of the summary hearing I accept the applicant's allegation as true.

13In the Application, the applicant refers to an e-mail exchange that took place in April 2015. It appears the exchange regarding Princip had taken place several months before.

14The Application was filed on April 20, 2016. The respondent asserts that the Application is untimely as it relates to the history class incident as it occurred more than one year before the Application was filed.

15The applicant does not dispute this and explains that she was asking questions and trying to deal with school on this matter and for this reason filed the Application more than one year after this incident. The applicant alleges that that throughout the time period between the history class incident and the geography class incident, the respondent repeatedly made derogatory remarks about the applicant’s ethnic background.

The Geography Class Incident

16The second allegation involves an exchange that took place in a geography course taught by the respondent during the second semester of the 2015–2016 school year. There is no dispute that the geography class incident is timely.

17In a discussion about countries worth visiting, the applicant suggested Serbia. The applicant alleges that the respondent said, “Oh I don’t think so, no one should go there.”

DECISION

18I am satisfied that, as a result of the history class incident, the respondent knew the applicant identified as a Serbian and that she had a strong sense of Serbian identity.

19While the history class incident took place outside the one year time limit, the applicant alleges the respondent continued to make derogatory remarks about the applicant’s ethnic background concluding with the geography class incident. As there was not a break of more than a year, I find that these events are a series of incidents, the last one of which was timely.

20Further I find that both the history class and geography class incidents could amount to differential treatment on the basis of a Code protected ground.

21In the result, I find that all of the allegations in the Application are timely and that it cannot be said that the Application has no reasonable prospect of success.

Order

22The Application shall continue in the Tribunal’s process.