Kotshulych v. Oxford Properties Group, 2017 HRTO 969

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ivan Kotshulych Applicant

-and-

Oxford Properties Group / Yorkdale Shopping Centre Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: July 28, 2017 Citation: 2017 HRTO 969 Indexed as: Kotshulych v. Oxford Properties Group

APPEARANCES

Ivan Kotskulych, Applicant Self-represented

Oxford Properties Group / Yorkdale Shopping Centre, Respondent Matthew Demeo, Counsel

Introduction

1This Application alleges reprisal and discrimination in services on the basis of ancestry, place of origin, citizenship 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”) dated April 6, 2017 the Tribunal, directed that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The applicant was directed to make argument and point to evidence which support a connection between the alleged actions of the respondent and the prohibited grounds alleged in the Application.

3The hearing took place by teleconference on July 25, 2017.

4As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own belief that the respondent treated the applicant in a Code related discriminatory manner.

Summary Hearing Process

5The 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.

6The Tribunal cannot address allegations of unfairness or mistreatment 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.

7The 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.

8However, 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 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.

9As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), 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 a breach of the Code.

10Having 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.

Application to the Facts

11The applicant self-identifies as a Ukrainian citizen who speaks English with a Ukrainian accent. He alleges that on August 25, 2016 he was approached by a security guard, told by the security guard to stop taking pictures on his phone, told to leave the mall, was threatened by the guard with being arrested and was issued a 24-hour verbal trespass notice because the security guard believed he was taking pictures with his phone in the mall. He claims that the security guard targeted him because of his accent, and that the actions were therefore discriminatory pursuant to the Code. He also alleges that his complaint to management was not accepted and that management did not apologize for the security guard’s conduct. He is claiming $20,000,000.00 in damages among other things.

12No one disputes that the situation of being removed from the mall was difficult and embarrassing. However, the Application provides no evidence or any evidence that may be reasonably available to him that could establish on a balance of probabilities that the applicant was targeted and approached by the security guard and told to stop taking pictures because of a prohibited ground pleaded by the applicant. The guard approached the applicant because he was taking pictures before there was any verbal communication to indicate the applicant had an accent.

13In addition, other than claiming he speaks with an accent, the applicant failed to point to any evidence, or any evidence that may be reasonably available to him that he was told to leave the mall, issued a trespass notice and threatened with arrest if he refused to leave because he spoke with an accent or because of any of the prohibited grounds pleaded by the applicant. Accordingly, the allegation that the applicant was approached by the guard and falsely accused of taking pictures must be dismissed as having no reasonable prospect of success.

14In the absence of the applicant being able to point to any evidence or any evidence that may be reasonably available to him, to connect or link his interaction with the security guard to a prohibited ground, the claim remains a bald allegation of discrimination based on the applicant’s suspicion and speculation that it was because of his accented English.

15Accordingly, the applicant’s allegations relating to his interactions with the security guard must be dismissed as having no reasonable prospect of success.

16The balance of the applicant’s complaint against the respondent relates to the nature of his interaction with the respondent’s management. It is evident that the applicant was upset that management did not accept his complaint against the security guard and that he was disappointed that he did not receive an apology. However, the fact that the applicant is not pleased with the response does not mean the respondent violated the Code in this regard. The applicant has not pointed to any evidence, or any evidence reasonably available to him, that would link management’s conduct to any of the prohibited grounds pleaded by the applicant. Accordingly, the allegations respecting management’s alleged conduct must be dismissed as having no reasonable prospect of success.

17At section 5 of the Application, the applicant ticked off the box indicating that the respondent subjected him to reprisal. In support of this allegation he states in his application at section C29, “Please explain why you believe you were reprised against?” that: he did no wrong; that he had the right to shop in the mall like other Canadian citizens; that he had the right to use his cell phone like other Canadian shoppers; and, he had the right not to be harassed without any valid legal reason.

18In my view, these allegations do not constitute reprisal under the Code and must be dismissed as having no reasonable prospect of success.

19The Tribunal’s test for whether reprisal contrary to section 8 of the Code has occurred was set out in Noble v. York University, 2010 HRTO 878. At para. 33 the Tribunal found that the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

20While the applicant may have told security, in accented English that he had not taken any pictures, that he had a right to be inside the mall and had a right to use his cell phone, the mere fact that he made these statements does not mean that any action or threatened action against him constitutes reprisal.

21The burden is on the applicant to point to evidence he has, or that is reasonably available to him, that there was an intentional act of reprisal by the respondent against the applicant for attempting to claim or enforce his rights under the Code.

22The allegations in the Application indicate that the complaints made by the applicant at the time of removal from the mall had no connection with the prohibited grounds pleaded. In my view, they had to do with general allegations of unfairness that were not linked to a Code ground. Even if the applicant identified himself as having a Code-protected ground during his interaction with security, this is not the same thing as seeking to claim or enforce Code-protected rights.

23In my view, the applicant has failed to point to any evidence, or any evidence reasonably available to him, that the action taken by the respondent, including removing him from the mall and issuing him a trespass notice was because the applicant attempted to enforce his Code-related rights.

24The Code is not designed to remedy all instances of perceived unfairness. The alleged treatment must be linked in a substantive way to a Code ground. The applicant must show more than mere subjective suspicion or speculation to establish a link between the respondents’ alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondent’s action with the Code. Here, I do not see that the applicant has alleged any facts or pointed to any evidence in his possession or that may be reasonably available to him that would be capable of establishing such a link.

25Accordingly, I find that this Application has no reasonable prospect of success.

Order

26For the above reasons the Application is dismissed.