Konesavarathan v. The Ontarion Inc., 2017 HRTO 967

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan Applicant

-and-

The Ontarion Inc. Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: July 28, 2017

Citation: 2017 HRTO 967

Indexed As: Konesavarathan v. The Ontarion Inc.

APPEARANCES

Kovarthanan Konesavarathan, Applicant Self-represented

The Ontarion Inc., Respondent Heather J. MacDougall, Counsel

1This is an Application 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 discrimination with respect to employment because of race, colour, place of origin, ethnic origin and disability.

2The 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 parties participated in the summary hearing by teleconference and were given an opportunity to describe their perspectives on the applicant’s allegations. By the time of the summary hearing the parties had filed the Application, Response and Reply.

3The 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 the applicant is required to prove adverse or unfair treatment which is based, in whole or in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation.

4At 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 the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence that is reasonably available to the applicant to support the belief that the applicant has experienced discrimination.

5The 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.

6There 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 exchange of disclosure and are determined on the basis that the applicant’s allegations are accepted as true. 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 for no reasonable prospect of success. The applicant’s role is to explain how he or she intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in the application.

7The applicant self-identifies with the prohibited grounds cited in the Application as person who is dark-skinned, South Asian, Tamil and originally from Sri Lanka. The respondent is a weekly newspaper associated with the University of Guelph.

8The applicant states that he submitted a volunteer application to write articles for the newspaper, he was warmly welcomed in email exchanges by the editor-in-chief. He states that when he went to meet the editor-in-chief, bringing two columns with him for publication, the attitude of the editor-in-chief was less welcoming. The applicant has a stutter and an anxiety disorder which creates thought blocks and increases his accent. His experience is that at times these issues make his speech unpleasant for some people to hear. He has had the experience of people assuming that he is not a competent writer because of these speech issues and stated in his Application that this is in part what he believes lead to the respondent refusing to publish two of his columns.

9The applicant states that his initial email exchanges with the editor-in-chief were positive, but that changed when they were face to face in the editor-in-chief’s office. He alleges that after the meeting the editor-in-chief did not respond to his emails or the columns he submitted and did not respond to his volunteer application. The applicant states that he went to the editor-in-chief’s office to find out why he was no longer communicating with the applicant. He alleges that the editor-in-chief was avoiding him so he waited until he could approach him and ask for an explanation as to why his columns had been rejected. He alleges that he was told by the editor-in-chief that his columns were not critical but rather personal attacks. The applicant, who argues that he is an experienced writer, disagrees that either column could be described as a personal attack.

10The respondent disputes many of the facts alleged by the applicant. The respondent alleges that there was an initial email exchange between the applicant and the editor-in-chief about contributing to the paper. The applicant then came into the office and provided hard-copy versions of the two columns in question. After the applicant left the office the editor-in-chief reviewed the columns, followed standard practices, asked colleagues to review the columns and share their concerns. There were concerns about the structure of the article, improper attribution of quotes and sources, as well as concerns with grammar and clarity. A few days later the applicant returned to retrieve his hard copies. During that meeting the editor-in-chief reviewed the issues and suggestions that had been made about the columns. The editor-in-chief argues that he never refused to publish the columns, but rather offered constructive suggestions and edits for improving them. The editor-in-chief argues that the applicant did not disagree with any of the comments in that meeting. On September 6, 2015, the applicant sent an email to the editor-in-chief offering him the opportunity to publish the two columns and also indicating that they had been published elsewhere. On September 17, 2015, the applicant attended a volunteer meeting during which staff from the newspaper pitched article ideas to volunteers, following which the volunteers approached the editor-in-chief to discuss the stories they would like write. The editor-in-chief argues that the applicant was offered but refused to pick up any stories for that week and did not return to the paper.

11I have considered the submissions of the parties and their written materials. Accepting the applicant’s allegations as true, as I am required to do at this stage, there appears to be a factual dispute which can be determined on a final basis by evidence from the applicant and the editor-in-chief. Pursuant to Rule 19.6A I do not consider it necessary or useful to provide further reasons for determining that this Application will advance to the next stage in the hearing process.

12I am not seized.

Direction

13I make the following direction:

• The Registrar is requested to set this Application for a one-day hearing.