Goldberg v. Sobeys Capital Incorporated, 2017 HRTO 1468

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Goldberg

Applicant

-and-

Sobeys Capital Incorporated

Respondents

-and-

2333508 Ontario Inc. o.a. McArthur & Lafontaine Freshco and Eric Ala-Kanti

Proposed Respondents

DECISION

Adjudicator: David Muir

Date: November 7, 2017

Citation: 2017 HRTO 1468

Indexed As: Goldberg v. Sobeys Capital Incorporated

APPEARANCES

Michael Goldberg, Applicant

Ted Rygas, Representative

Sobeys Capital Incorporated, Respondent

Sarah Graves, Counsel

2333508 Ontario Inc. o.a. McArthur & Lafontaine Freshco and Eric Ala-Kanti, Respondents

Sarah Lapointe, Counsel

1This is an Application filed on November 10, 2016, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a Case Assessment Direction issued on February 8, 2017, the Tribunal directed that a summary hearing be held to hear the parties’ submissions about whether or not this Application should be dismissed in whole or in part because it had no reasonable prospect of success and/or because it was filed beyond the one-year time limit provided for in section 34(1) of the Code.

3In addition to these issues, on March 14, 2017, the respondent filed a Request for Summary Hearing (“Request”) seeking the dismissal of the Application for the additional reason that it is not properly a party to the Application because it never at any material time operated the store where the alleged discrimination took place. Finally, the question of whether or not the numbered company and the personal respondent (“proposed respondents”) should be identified as respondents to the Application was added to the issue to be addressed.

4A summary hearing was held on October 31, 2017, by telephone conference call. All parties participated.

5For the reasons that follow, the Application is dismissed.

6Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.

8The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must point to evidence which would tend to establish that the actions complained of were discriminatory.

9In his Application the applicant alleges that he was banned from a grocery store operated at the time by the proposed respondents. The applicant alleges that the reason given for his banning from the store – that he opened a package of food in the store with a knife – was a pretext, the real reason being that he was a Jew.

10On the face of the Application there are few facts asserted that would establish a link between the action of the respondent and the grounds of discrimination alleged. The applicant does assert that a gang operates in the area and that the proposed personal respondent is on “good terms” with the gang.

11At the hearing, I asked the applicant what evidence he believed he would be able to bring to a merits hearing that would establish the necessary link. The applicant submitted that he could prove that he is well known in the community as a Jew and that the gang is well organized and has, for example, published pictures of him with a local rabbi. The applicant also contends that the gang is largely or exclusively “Arabic”. The applicant and his representative also indicated that they would tender evidence of their both being harassed by members of the gang. They asserted at the hearing that a restaurant within a block of the store in question was recently closed by the police because of drug-related offences and that all of those involved were Arabic.

12When the proposed respondents asserted that the proposed personal respondent was not Arabic but Finnish, the applicant suggested that the personal respondent was afraid of the gang and consequently sought to curry favour with them by banning him because he is a Jew. Beyond this the applicant suggested no evidence that would tend to establish that the proposed personal respondent knew he was a Jew when he banned the applicant in November 2013.

13In terms of the actual events there are disputes about what exactly took place and where. The respondents contend that they believed that the applicant opened a food package with the knife in the store. The applicant contends that he opened a food package with a pen outside of the store.

14There is also a dispute about the nature of the ban. The proposed respondents contend that it was for the day only – that is, the applicant was asked to leave the store. The applicant alleges on the other hand that the ban is ongoing. I note in this regard that the proposed respondents on the record indicated that the ban was for one day only and the applicant was entitled to enter the store at any time. The proposed respondents also advised that they no longer own or operate the store in question.

15In my view this Application must be dismissed because it has no reasonable prospect of success. The applicant appears to sincerely believe that the influence of the gang on the proposed personal respondent was the impetus for the decision to ban him. However, the links between that decision and the grounds claimed are entirely speculative. There is no evidence to which the applicant can point that would establish that the proposed personal respondent knew that the applicant was a Jew. As for the alleged link between the activities of the gang, its knowledge of the applicant and any influence it had on the proposed respondents’ decision, it is entirely speculative on the applicant’s part. He has no evidence for example that the gang intervened with the proposed respondents and directed that they ban or otherwise interfere with the applicant. Without evidence to establish those linkages, the Application has no reasonable prospect of success.

Delay

16Section 34 (1) and (2) of the Code reads as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

17Assuming for purposes of this analysis that the alleged ban was permanent and not for one day as alleged by the proposed respondents, the event took place in November 2013. This Application was filed on November 10, 2016. The applicant sought to rely on the fact that he had filed an earlier Application on June 10, 2016. This Application was closed as incomplete on August 29, 2016. Assuming without deciding that the applicant can rely on the first Application for purposes of this issue it remains that the Application was filed approximately 30 months after the event.

18The applicant relies on the fact that he alleges that the ban is an ongoing violation. I do not agree. This case falls into the category of cases where the alleged act of discrimination has an ongoing effect and not those cases where there are multiple discrete acts of discrimination that occur over a period of time. In the case the decision was made on November 23, 2013. The Application should have been filed by November 23, 2014. See Garrie v Janus Joan Inc., 2012 HRTO 1955.

19The Tribunal can hear an Application filed beyond the one-year time limit prescribed in the Code; however, the Tribunal must be satisfied that there is a good faith explanation for the delay and that there would be no substantial prejudice to any party if the case were to proceed further in the Tribunal process. The applicant offered no good faith explanation for the delay. In the absence of any explanation for the delay the Application is untimely and must be dismissed.

20Having come to these conclusions there is no need to deal with the other outstanding issues.