Paroski v. Ontario (Natural Resources and Forestry), 2017 HRTO 1354

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ivan Paroski

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Natural Resources and Forestry

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: October 13, 2017

Citation: 2017 HRTO 1354

Indexed As: Paroski v. Ontario (Natural Resources and Forestry)

APPEARANCES

Ivan Paroski, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Natural Resources and Forestry,

Respondent

Scott Dunsmuir, Counsel

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he experienced discrimination in the area of goods, services and facilities on the basis of age when he was fined for fishing without a valid fishing licence. He alleges differential treatment on the basis that people who are under 18 or 65 years of age do not require a fishing licence.

2The respondent requested that the Application be dismissed on the basis that it has no reasonable prospect of success. The respondent submits that the provision of the Fish and Wildlife Conversation Act, 1997, S. O. 1997, c. 41, that allows persons over 65 and under 18 to fulfil the licence requirement by providing identification rather than purchasing a licence, is exempt under the following:

a. Section 15 of the Code, which allows for preferential treatment of persons over 65 years of age;

b. Section 10 of the Code, which defines “age” as “an age that is 18 years or more”; and

c. That this licencing provision is a special program as defined under section 14 of the Code.

3In a Case Assessment Direction (“CAD”) dated April 18, 2017, the Tribunal set this matter for a summary hearing. The 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 explanation set out in the CAD for holding a summary hearing for this Application is that it appears that the applicant may be unable to prove that there is a connection between what the respondent is alleged to have done, and the grounds cited in the Application. In other words, although the applicant may believe that the conduct of the respondent is connected to the grounds, it is not clear that there is evidence available to the applicant to prove that connection. The focus of the summary hearing is on the evidence the applicant has or may be able to obtain to support his beliefs.

4The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

5The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code it requires proof of some form of disadvantage which is based, at least in part, on a prohibited ground under the Code. In other words, the ground must somehow be a factor in treatment experienced by the applicant. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.

6At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions about why they were treated this way. The purpose of the summary hearing is to determine if there is evidence in the applicant’s possession or that may be reasonably available to the applicant to support the applicant’s belief that they have experienced discrimination.

7The primary focus in the summary hearing is on the applicant’s submissions. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

8There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process, prior to the respondent filing a response or the exchange of disclosure. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed on the basis of no reasonable prospect of success.

9The parties participated in a summary hearing by conference call on July 25, 2017.

10The applicant was initially concerned about his perception that both the respondent and the Tribunal were government agencies. I took some time to explain to the applicant that the Tribunal is an adjudicative body that is independent from government to allay his concerns about a potential conflict of interest. The applicant was content to proceed following this explanation.

11The facts of this case are not in dispute. The applicant received a ticket for fishing without a licence. He was with his two-year old child at the time. The applicant had a trial in front of judge before a conviction was registered. The time for initiating an appeal against that conviction has now passed.

12Fundamentally, the applicant believes that if people are to be treated equally with respect to fishing licences, they should be treated the same. In other words, there should be no exemptions based on age for fishing licences. He stressed that he believes in the conservation purposes that are served by issuing fishing licences. His view is that everyone should be required to obtain a licence and that the exemptions are discriminatory.

13Accepting the applicant’s factual allegations as true, which I am required to do at this stage, I find that there is no reasonable prospect that he can succeed under the Code. As the respondent has argued, the Code contains exemptions which permit distinctions to be made on the basis of age for those under 18 and over 65 that do not permit of any exceptions. As such, the finding of no reasonable prospect of success is based on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation. In addition, the applicant is unable to demonstrate that he is disadvantaged by the fact that others are exempt from the licencing requirements, a key issue in determining whether the provisions are discriminatory. If the exemptions did not exist, everyone would be required to obtain a fishing licence, including the applicant.

14Accordingly, the Application is dismissed.