HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dick Chui
Applicant
-and-
Iam Yoga Inc.
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Chui v. Iam Yoga Inc.
APPEARANCES
Dick Chui, Applicant
Self-represented
Iam Yoga Inc., Respondent
Ryan Edmonds, Counsel
Introduction
1The applicant was a student in the respondent’s yoga studio. The respondent barred him from attending the studio after it received complaints that he was harassing women.
2The applicant subsequently filed an Application with this Tribunal. He denied that he was harassing women. He alleged that the women who made these false allegations are mentally ill. He also alleged that these women were, in fact, subjecting him to sexual solicitations and advances. He further alleged that the respondent’s decision to bar him from attending its yoga studio constituted discrimination with respect to services because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability.
3The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue.
4I have decided to dismiss the Application. I have found that the Application has no reasonable prospect of success because the applicant’s allegations of sexual solicitations and advances are being made in bad faith, and he has largely made bald allegations, rather than pointing to evidence that he has or that is reasonably available to him, that the respondent barred him from attending its yoga studio because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability. The following are my detailed reasons for the dismissal.
BACKGROUND
5The applicant identifies as a straight man, Chinese, born in Hong Kong, 58 years-old, and mentally healthy.
6The respondent operates a yoga studio. The owners and most of the instructors and students at the studio are women. L.M., who is one of the owners, had a brother with mental health conditions who ended his life. As a result, she decided to create a studio environment which explicitly welcomes, and offers the benefits of yoga to people living with depression and other mental health conditions.
7In May 2015, the applicant began attending yoga classes at the studio. He became a regular attendee. In March 2016, he began taking yoga teacher training courses at the studio.
8On August 20, 2016, another student at the yoga studio, E.M., who is female and in her early twenties, sent the respondent a complaint email, which alleged that she was being subjected to “ongoing harassment” by the applicant. She was, like the applicant, a student, but she also performed cleaning duties, in exchange for which she had free access to classes. She alleged that the applicant bought drinks for her without asking her, tried to organize and pay for her to go to a yoga retreat with him in Italy without asking her, pressured her to attend private yoga classes with him, insisted on walking her from the studio to her apartment, stood close to her when she cleaned the studio, and put his mat next to hers whenever they were in the same yoga class.
9On September 1, 2016, the respondent’s owners sent the applicant an email, which informed him that he was no longer allowed to attend the yoga studio because of his harassment of staff. They stated that they had received “more than one complaint” about inappropriate and offensive behaviour by him, which resulted in a number of students and staff feeling uncomfortable and unsafe. They only named one complainant, E.M., and warned him not to contact her.
10On September 1, 2016, the applicant sent the respondent an email in response, which stated that he was totally unaware of any problems, and thought that everyone in the yoga studio was getting along well. He also stated that if E.M. did not want to talk to him, she should have told him directly, and he would have complied. He also requested that the respondent consider giving him a warning rather than barring him from the studio.
11On September 8, 2016, the respondent’s owners sent the applicant an email, which stated that they would not be changing their decision at that time. They stated that his intention may not have been to upset people when he did or said things that offended those whom he was communicating with, but he had. They stated that they knew that the yoga studio was important to him, and that it was a place that was “welcoming to all people - including those people who may be a little different.” Therefore, they stated, he could contact them again in three months’ time, and suggested that, in the meantime, he reflect upon how he could improve on the way he impacts people around him with the way he communicates.
12On September 12, 2016, the applicant sent the respondent a complaint email, which alleged that E.M. had subjected him to sexual solicitations and advances. Specifically, he alleged that E.M. asked him repeatedly to go out for a drink with her, asked him repeatedly to meet her at the yoga studio, asked him if he was going out with anyone, told him that she did not have anyone to go out with, told him that they were connecting very well, told him they were really getting along, and made physical contact with him for two minutes while performing a posture at a picnic table in the studio. He also alleged that E.M. repeatedly made appointments to see him, but would then cancel at the last minute in order to purposely inflict emotional stress and anguish on him. He requested that the respondent investigate his complaint.
13On September 23, 2016, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with this Tribunal, which alleged that the respondent subjected him to sexual solicitations and advances, and discriminated against him with respect to services because of his sexual orientation.
14Specifically, the applicant alleged that E.M. subjected him to sexual solicitations and advances, and that the respondent discriminated against him, as a straight man, by terminating the service relationship with him in order to satisfy women’s emotional needs. He alleged that E.M.’s prior harassment complaint against him was “unjustified”. His allegations of sexual solicitations and advances against E.M. were the same as the ones in his September 12, 2016 complaint email to the respondent. In support of his allegation of discrimination, he stated that the respondent barred him from attending its yoga studio without giving him any notice, opportunity to defend himself, or fact finding, and that the respondent’s policy on complaints treats men different than women because a woman who is the subject of a complaint would be spoken to and given warnings and an opportunity to improve.
15On January 5, 2017, the respondent filed a Response, which denied the allegations of sexual solicitations and advances and discrimination. The respondent alleged that it barred the applicant from attending its yoga studio solely because of complaints it received, including from E.M., about his inappropriate behaviour towards young women that posed a safety risk. The respondent set out the allegations that it had received from E.M. in her August 20, 2016 complaint email. The respondent also denied that the applicant was entitled to any “warnings” before it terminated the service relationship with him, and alleged that it was, in fact, entitled to immediately terminate the relationship with him. The respondent further alleged that after the applicant was barred from attending the studio, a number of other staff and customers came forward with complaints about his erratic and unwelcome behaviour, including staring during classes while spreading his legs in a manner that made attendees feel uncomfortable.
16On January 30, 2017, the applicant filed a Reply, which maintained his allegations of sexual solicitations and advances and discrimination because of sexual orientation. He also stated that the fact that nearly all of the respondent’s staff and instructors are women supports his allegation of discrimination because of sexual orientation. He further stated that during a yoga teacher training course, the respondent clearly stated that its policy for dealing with a woman who was physically touching men in class was to talk to her many times, and it could not terminate the service relationship with her because she had a yearly membership.
17In his Reply, the applicant also made new allegations of sexual solicitations and advances against E.M., and new allegations that the respondent discriminated against him with respect to services because of race, ancestry, place of origin, ethnic origin, age, and disability.
18Specifically, the applicant alleged that E.M. would hide in the men’s changing room under the guise of cleaning to see him and other men naked. He described her behaviour as sexual harassment. He also alleged that E.M. asked him to watch her do a headstand, and while she was in the position her top dropped a bit exposing her belly. He described her conduct as a sexual advance towards him.
19The applicant also alleged that the fact that E.M. and L.M. are both of Norwegian descent and born in Canada, while he is Chinese and born in Hong Kong, was a factor in the respondent’s decision to bar him from attending its yoga studio.
20The applicant also alleged that the respondent is not willing to provide a service to older men, such as him.
21The applicant further alleged that the respondent’s yoga community includes people with mental health conditions, whose behaviour threatens the security of mentally healthy people, such as him. For example, he stated, E.M. has mental health conditions, which resulted in her making false allegations against him. In response to the allegation made against him that he stared at other attendees during yoga classes, he stated that he would keep his eyes open during meditation for security reasons, namely, the potential threat to him from students with mental health conditions. As a remedy, he requested that the Tribunal order that students, instructors and staff who have been hospitalized for depression or had suicidal thoughts be barred from attending the respondent’s yoga studio, and that all staff be required to pass a psychological competence test.
22On March 14, 2017, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested the Application be dismissed on a summary basis because it has no reasonable prospect of success. The respondent stated that the applicant has made bald allegations, rather than pointing to facts or evidence, that he was subjected to sexual solicitations and advances and discrimination because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability. The respondent also stated that the applicant’s suggestion that it would not respond to a complaint against women in the same way that it responded to the complaints against him is not grounded in fact, but rather, based on his subjective beliefs and assumptions.
23In its RFOP, the respondent also attached sworn affidavits from five women about the applicant’s alleged inappropriate behaviour at the yoga studio, including L.M., E.M., and another female staff person, S.S., who is also in her twenties.
24In her affidavit, L.M. stated that the respondent’s yoga studio is known for attracting a diversity of attendees with different mental health conditions. She stated that the applicant had made a number inappropriate and unwelcome comments to her personally. For example, she stated, in the presence of students, he loudly inquired why she was not married, and asked if there was something wrong with her. She stated that she consistently told him that his questions and comments were inappropriate. She stated that she always made him feel welcome and tolerated his offensive and inappropriate behaviour because she thought that the studio could accommodate and tolerate his personality traits.
25However, L.M. stated, after receiving several concerning complaints from young female staff and students at the yoga studio, she was compelled to address the issues because a fuller picture of the pattern of the applicant’s behaviour and actions had become apparent. She stated that E.M.’s complaint was not the first of its kind about him. She stated that she had received an earlier complaint from S.S., which advised her of similar concerns about his behaviour, and requested that he refrain from interacting with her.
26L.M. also stated that she does not recall ever advising the applicant that he was entitled to warnings in the event of repeated breaches of the respondent’s Code of Conduct and ethical guidelines. In fact, she stated, she does not recall ever establishing or implementing progressive discipline guidelines.
27In her affidavit, S.S. made a number of allegations about the applicant’s behaviour in the yoga studio, including that he started bringing drinks and food for the female instructors and students, he would often tell her and other attendees that he had a lot of money, he showed her and other female attendees his new underwear and yoga shorts, he consistently invaded the personal space of her and other female attendees, he continually placed his mat next to hers before classes, and he stared at her during classes.
28On March 27, 2017, the applicant filed a Response to the RFOP, which opposed the respondent’s request to dismiss his Application on a summary basis. He stated that his Application has a reasonable prospect of success for the following reasons.
29With respect to his allegation of sexual advances and solicitations, he raised a new allegation, namely, that S.S. had also subjected him to sexual solicitations.
30With respect to his allegation of discrimination because of sexual orientation, he stated that during a yoga teacher training course at the studio, L.M. stated that the respondent’s policy for handling complaints is to give warnings to the alleged perpetrator. He stated that L.M. provided an example where a woman, who was touching men during yoga practice and was rude to staff, was given warnings and not barred from returning to the studio. By contrast, he stated, after receiving complaints from women about him, the respondent barred him from attending the studio right away without any consultation with him, fact finding, or warning.
31With respect to his allegation of discrimination because of race, ancestry, place of origin, and ethnic origin, he stated that during the yoga teacher training courses at the studio, an instructor, L.K., stated many times that yoga is mostly “a white women’s sport”.
32With respect to his allegation of discrimination because of disability, he stated that L.M., E.M. and S.S. all have mental health conditions, which affects their judgment and raises concerns about the credibility and reliability of their allegations against him. He stated that integrating persons with mental health conditions into the yoga studio affected the security of mentally healthy attendees, such as him.
33On May 11, 2017, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The summary hearing took place by teleconference on August 17, 2017.
ANALYSIS
34The Application relates to sections 1, 7, 9, and 10 of the Code, which provide:
- 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.
(...)
- (3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome;
(...)
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) In Part I and in this Part,
(...)
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
(...)
35Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an Application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the Application or part of the Application will succeed. The approach to deciding whether an Application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-9:
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.
36The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
37The focus at the summary hearing was mainly on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent subjected him to sexual solicitations and advances, and discriminated against him with respect to services because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability.
38In his oral submissions, the applicant largely repeated the allegations and submissions that he made in writing in his Application, Reply, and Response to the respondent’s RFOP. However, he also stated the following.
39With respect to his allegation of sexual advances and solicitations, the applicant stated that both E.M. and S.S. subjected him to such advances and solicitations. Specifically, he stated, among other things, they both repeatedly asked him out. When the Tribunal asked the applicant why he did not complain about these advances and solicitations when he was a student at the yoga studio, he responded that the culture of studio was to get to know each other and bond as a community, and he thought they were just friends. He stated that he is just defending himself against the complaints that they made against him.
40With respect to his allegation of discrimination because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability, the applicant stated that the respondent’s September 8, 2016 email to him, which stated that he was “different”, shows that there was a strong link between respondent’s decision to bar him from attending its yoga studio and these prohibited grounds of discrimination.
41In its oral submissions, the respondent also largely repeated the allegations and submissions that it made in writing in its Response to the Application and its RFOP. However, the respondent also stated the following.
42With respect to the applicant’s allegation of sexual advances and solicitations, the respondent stated that his counter complaint against E.M. was made in bad faith and is victim-blaming. The respondent also stated that the applicant’s allegations of sexual advances and solicitations against S.S. came even later, and that the Tribunal should draw an adverse inference against him because of that. The respondent further stated that the applicant’s answer to the Tribunal’s question why he did not complain about these advances and solicitations when he was a student at the yoga studio shows that his allegations against E.M. and S.S. are being made in bad faith.
43With respect to the applicant’s allegation of discrimination because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability, and his submissions about the respondent’s September 8, 2016 email to him, the respondent stated that the part of the email about the yoga studio being a welcoming place to people who may be a “little different” was not referring to any prohibited grounds of discrimination. Rather, the respondent stated, this part of the email was referring to how the applicant communicated with other people and perceived the world.
44In its submissions, the respondent also stated that the applicant’s submissions about instructors and students with mental health conditions, particularly his position that they should be barred from attending the yoga studio, are discriminatory, based on stereotypes, and offensive.
45In his reply submissions, the applicant stated that it is not his position that all people with mental health conditions should be barred from attending the respondent’s yoga studio. Rather, he stated, people with mental health conditions who are mentally competent should be able to attend with supervision. He stated that people with mental health conditions have to be dealt with differently to protect “us”.
46At this stage of the proceeding, the Tribunal must decide whether, based on the pleadings, supporting documents, and submissions, the Application has a reasonable prospect of success. When a general evaluation of the evidence that is proposed to be called makes it clear that the Application has no reasonable prospect of success, the Application should be dismissed. The Tribunal cannot make findings of fact with respect to the merits of the Application, but, where the applicant’s statements to the Tribunal raise credibility issues, the Tribunal is not prevented from applying its expertise and assessing the likelihood that findings of fact to support the Application could be made after a full evidentiary hearing. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 20, and Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34.
47In my view, the Application has no reasonable prospect of success. I will begin by addressing the applicant’s allegation that the respondent subjected him to sexual solicitations and advances. For the following reasons, I agree with the respondent that the applicant is making this allegation in bad faith:
The applicant did not complain that E.M. and S.S. had subjected him to sexual solicitations and advances when he was a student at the respondent’s yoga studio.
On September 1, 2016, the respondent sent the applicant an email, which informed him that he was no longer allowed to attend the studio because of his harassment of staff and students, and named one complainant, E.M. In the applicant’s same day email response to the respondent, he did not allege that E.M. had subjected him to sexual solicitations and advances. Instead, he stated that he was totally unaware of any problems, and thought that everyone in the studio was getting along well, and that if E.M. did not want to talk to him, she should have told him directly, and he would have complied.
In the applicant’s September 12, 2016 complaint email to the respondent and his September 23, 2016 human rights Application, he alleged that E.M. had subjected him to sexual solicitations and advances, but he did not allege that S.S. had subjected him to sexual solicitations and advances.
On March 14, 2017, the respondent filed a RFOP, which included a sworn affidavit from S.S., and informed the applicant, for the first time, that S.S. had also complained and made allegations similar to E.M.’s about his inappropriate behaviour with her and other women. On March 27, 2017, the applicant filed a Response to the RFOP, which raised a new allegation, namely, that S.S. had also subjected him to sexual solicitations.
When the Tribunal asked the applicant why he did not complain when he was a student at the studio about E.M.’s and S.S.’s alleged sexual solicitations and advances towards him, he openly admitted that at that time he thought they were just friends, and that he is now just defending himself against the complaints that they made against him.
A number of the applicant’s allegations of sexual solicitations and advances lack an air of reality. For example, his allegation that when E.M. performed a headstand in the studio, and her top dropped a bit exposing her belly, this was a sexual advance towards him is, on its face, ludicrous.
48In the circumstances, having evaluated the evidence that is proposed to be called, I find that the applicant’s allegation that the respondent subjected him to sexual solicitations and advances has no reasonable prospect of success. Specifically, he has no reasonable prospect of proving, on a balance of probabilities, that the respondent subjected him to sexual solicitations and advances given that he did not believe that E.M. and S.S.’s interactions with him were such at the time they occurred, and has only re-framed them as such as a way of defending himself against their prior allegations of sexual solicitations and advances against him.
49I will next address the applicant’s allegation that the respondent barred him from attending its yoga studio because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability. For the following reasons, I agree with the respondent that the applicant has largely made bald allegations, rather than pointing to evidence that he has or that is reasonably available to him, that he was subjected to discrimination because of any prohibited grounds.
50With respect to the applicant’s allegation of discrimination because of all these prohibited grounds, he pointed to the following evidence: the respondent’s September 8, 2016 email to him, which referred to him being “a little different”. However, having reviewed that email in its entirety, it is clear to me that, on its face, this comment is directly referring to his way of communicating, specifically, his actions and statements that upset or offended other people, not any prohibited grounds of discrimination. The applicant did not explain, and I do not see, how this comment is indirectly referring to any prohibited grounds of discrimination.
51With respect to the applicant’s allegation of discrimination because of sexual orientation, he pointed to the following evidence: nearly all the respondent’s staff and instructors are women, and the respondent’s policy for handling complaints against women is to give warnings to the alleged perpetrator. The fact that most of the respondent’s staff and instructors are women has some, but minimal, evidentiary value. The alleged fact that the respondent’s policy for handling complaints against women is to give warnings to the alleged perpetrator is based on one example, which lacks particulars and details. It is also entirely based on alleged statements by L.M. during a yoga teacher training course, which the respondent disputes the accuracy of, but the applicant has not proposed calling other students in the course as corroborative witnesses.
52With respect to the applicant’s allegation of discrimination because of race, ancestry, place of origin, and ethnic origin, he pointed to the following evidence: E.M. and L.M. are both of Norwegian descent and born in Canada, while he is Chinese and born in Hong Kong, and L.K., who is an instructor in the yoga studio, stated many times that yoga is mostly “a white women’s sport”. The fact that the applicant, on the one hand, and E.M. and L.M., on the other hand, have different racial, ancestral and ethnic backgrounds and were born in different countries, has some, but minimal, evidentiary value. The alleged statement by an instructor that yoga is mostly “a white women’s sport” is, on its face, a neutral observation about the participants at yoga studios in the West. The applicant did not point to any evidence that the instructor stated or meant that yoga should only be for white women, or that men or racialized persons should be excluded.
53With respect to the applicant’s allegation of discrimination because of age, he did not point to any evidence. He merely made a bald allegation that the respondent is not willing to provide a service to older men, such as him.
54With respect to the applicant’s allegation of discrimination because of disability, he pointed to the following evidence: L.M., E.M. and S.S. all have mental health conditions, which affects their judgment and raises concerns about the credibility and reliability of their allegations against him. However, the mere fact that a woman has a mental health condition does not mean that she lacks judgment or makes unreliable allegations about the behaviour of men. The applicant simply made a bald statement connecting the two; he did not explain in any way how their specific mental health conditions are connected to lacking judgment or making unreliable allegations about the behaviour of men. Furthermore, the applicant’s submissions on this issue are tainted by his numerous prejudicial, stereotypical, and discriminatory statements about people with mental health conditions.
55In the circumstances, having evaluated the evidence that is proposed to be called, I find that the applicant’s allegation that the respondent barred him from attending its yoga studio because of sexual orientation, race, ancestry, place of origin, ethnic origin, age, and disability has no reasonable prospect of success. Specifically, he has no reasonable prospect of proving, on a balance of probabilities, that the respondent subjected him to such discrimination given the paucity of evidence that he has or that is reasonably available to him that can show a link between the respondent’s decision to bar him from attending the studio and any prohibited grounds of discrimination.
ORDER
56The Application is dismissed.
Dated at Toronto, this 20th day of September, 2017.
“Signed by”
Ken Bhattacharjee
Vice-chair