Shirley v. Staples Canada Inc., 2018 ONSC 1698

CITATION: Shirley v. Staples Canada Inc., 2018 ONSC 1698

DIVISIONAL COURT FILE NO.: DC-16-616

DATE: 20180314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Morawetz R.S.J., Kiteley, M.G. Quigley JJ.

BETWEEN:

Othneil Shirley

Applicant

– and –

Staples Canada Inc. and Human Rights Tribunal of Ontario

Respondents

Roger Love, for the Applicant

Andrea Habas, for the Respondent Staples Canada Inc.

Jason Tam, for the Respondent Human Rights Tribunal of Ontario

HEARD at Toronto: November 23, 2017

REASONS FOR DECISION

BY THE COURT:

1This is an application for judicial review to set aside two decisions of the Human Rights Tribunal of Ontario (the “Tribunal”): a summary hearing decision dated April 21, 2016 and the reconsideration decision dated October 7, 2016.¹ In these decisions, the Tribunal summarily dismissed an application pursuant to s. 34 of Part IV of the Human Rights Code (the “Code”)² in which the Applicant alleged discrimination in services on the basis of race, colour, and reprisal. The Tribunal found that the Application had no reasonable prospect of success and denied the Request for Reconsideration. For the reasons that follow, this application is dismissed.

Background

2The Applicant self-describes as a black male of African descent. On May 21, 2014 he was at a Staples Canada Inc. (“Staples”) to shop and he alleged that the cashier and the Manager on Duty accused him of harassing a female customer and removed him from the store. On May 20, 2015, the Applicant filed an application under the Code in which he alleged that Staples discriminated against him on the basis of race, colour and reprisal. In the Application, he described briefly the circumstances that had occurred. He did not provide or ask for documents.

3On September 4, 2015 Staples filed responding material that included three appendices: a denial of the allegations (Appendix A), and a statement in writing by each of the Manager on Duty and the cashier as to their versions of the events (Appendices B and C). According to the materials, Staples first became aware of the events upon receipt of the July 14, 2015 letter from the Tribunal Registrar at which time Staples conducted an internal investigation and obtained statements from the individuals involved. The written statement attributed to the Manager indicated that he did not get the name of the female customer.

4In a Case Assessment Direction (CAD) dated October 5, 2015, the Tribunal directed, on its own initiative, that a summary hearing be held by teleconference pursuant to Rule 19A.1 of the Tribunal’s Rules of Procedure. According to the CAD, the issue to be determined at the summary hearing was whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Applicant could demonstrate that there was a connection between the alleged actions of the Respondent and the Code grounds on which he relied. The CAD informed the Applicant that during the summary hearing he would need to provide details of the evidence he intended to rely on to show the link between the Respondent’s actions and his race or colour or that the Respondent’s actions amounted to reprisal under the Code.³ The Tribunal noted that the Applicant had not responded to the materials filed by Staples and directed that, no later than 35 days after the date of the CAD, the parties were to deliver to each other and file with the Tribunal copies of any further documents or cases they intended to rely on at the summary hearing.

5On November 5, 2015, the Applicant filed a Reply to a Response (Form 3) in which he provided a more detailed version of what had occurred and in which he denied many of the assertions made in the statements provided by Staples. On page 3 he indicated that the Manager was a white male Caucasian, the cashier was an Indian female woman, the customer was a female Indian woman who had the same skin colour as the cashier, and that he was a black male of African descent. On page 4 of his Reply he asserted that he had been discriminated against by both Staples’ employees on the grounds of race and gender.⁴ Staples did not file further material.

6The Tribunal issued a notice indicating that the summary hearing would be held by conference call on February 3, 2016 at 1:30 p.m. to 4:30 p.m.

7The Applicant participated in the conference call without counsel. Staples was represented by counsel.

8As indicated above the, Tribunal’s summary hearing decision is dated April 21, 2016.

9The Applicant’s Request for Reconsideration is dated May 24, 2016 and was filed by counsel at the Human Rights Legal Support Centre. That Request was considered on the basis of written submissions by counsel for the Applicant to which counsel for the Respondent did not reply.

10As indicated above, the Tribunal’s reconsideration decision is dated October 7, 2016.

Decisions of the Tribunal

Summary Hearing Decision

11In its initial decision dated April 21, 2016, the Tribunal dismissed the Application on the basis that there was no reasonable prospect that it would succeed. In its reasons, the Tribunal referred to paragraphs 7 – 9 of Dabic v. Windsor Police Service⁵ and concluded that the Applicant did not point to any evidence that established a link between the Respondent’s actions and the Applicant’s race or colour. Moreover, the Tribunal found that none of the Applicant’s allegations could be found to be reprisal as defined under the Code. The Tribunal found at paragraph 19 that the Applicant had “made general allegations based on his own belief about why the respondent’s employees acted the way they did” and concluded that the Applicant failed to point to any evidence beyond his own belief to substantiate his allegations.

Reconsideration Decision

12In his Request for Reconsideration, the Applicant relied on Rule 26.5(c) and (d) of the Tribunal’s Rules of Procedure. He argued that the Tribunal failed to consider jurisprudence from the Court of Appeal for Ontario concerning racial profiling. This jurisprudence, he submitted, made it clear that racial profiling can occur at an unconscious level. As a result, it would be nearly impossible for him to show a nexus between his race and the Respondent’s actions at the summary hearing stage, although there would be, at the very least, a reasonable prospect of success at a full hearing on the merits. The Applicant further submitted that in other racial profiling cases, applicants were provided an opportunity to present their case at a full hearing, during which they could cross-examine respondent witnesses. He argued that this ensures that applicants are provided with every opportunity to make out a prima facie case.

13The Tribunal dealt with the Request for Reconsideration in writing and issued its decision on October 7, 2016 denying the request. In the summary hearing decision, the Tribunal had not addressed the difference between direct and circumstantial evidence but did so in the reconsideration decision. The Tribunal concluded as follows as para. 10:

I have determined that the Decision is not in conflict with jurisprudence on the nature of the inquiry into whether the applicant has a reasonable prospect of success in the Application. I have also determined that the experience of the applicant is distinct from racial profiling cases and the Decision is not in conflict with the jurisprudence on racial profiling in services cases. There are no factors that exist that outweigh the public interest in the finality of Tribunal decisions and that warrant a reconsideration of the Decision.

Application for Judicial Review

14In this application for judicial review, the Applicant asks for an order setting aside the decisions. In his factum, the Applicant also asked that the matter be remitted to the Tribunal with a differently constituted panel.

15In oral submissions, counsel for the Applicant raised the following four issues:

(a) The summary hearing and reconsideration decisions are not transparent or intelligible because neither explained why the Applicant had no evidence that makes the link between race and colour on the one hand and discrimination on the other hand.

(b) The reconsideration decision fell outside the range of reasonable outcomes because it was based on an implicit finding about the Applicant’s behaviour and was in conflict with the jurisprudence in that it relied on the irrelevant factor of his behaviour.

(c) The summary hearing decision fell outside the range of reasonable outcomes because it relied on the Respondent’s version of events.

(d) The summary hearing and reconsideration decisions were outside the range of reasonable outcomes because neither considered evidence that could have been obtained at a hearing where the Respondent’s witnesses were cross-examined.

16In response, Staples takes the position that the Applicant’s arguments are dependent on two conclusions that are not defensible. First, the Applicant takes the position that the Tribunal erred by failing to accept as proven the facts as alleged by him and by relying on the version of events in Staples’ reply. Staples pointed out that the Tribunal correctly accepted and relied on the facts as alleged by the Applicant and did not refer to the allegations contained in Staples’ response. Second, Staples argues that the Applicant is implicitly suggesting, incorrectly, that the meaning of the words “no reasonable prospect” that the Application will succeed ought to be read as meaning “no theoretical possibility” that the Application will succeed.

Standard of Review

17There is no dispute that the appropriate standard of review is reasonableness. The Tribunal is a highly specialized expert tribunal entitled to the highest degree of deference.⁶

The Regulatory Context

18Pursuant to its rule-making authority, the Tribunal has established rules of procedure that allow the Tribunal to adopt practices and procedures that give it control over how an application is processed, heard and decided either on a preliminary basis or following a hearing on the merits. Rule 19A.1 provides that the Tribunal may hold a summary hearing 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 it will succeed.

19Pursuant to s. 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules of Procedure. According to Rule 26.5(c) and (d), a request for reconsideration will not be granted unless the Tribunal is satisfied that one of the following criteria is met:

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

20The Tribunal has issued a practice direction that provides guidance to the community on the Tribunal’s exercise of its reconsideration powers. The Practice Direction indicates that the Tribunal will generally only reconsider a decision “where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.”

Analysis

21In order to be successful the Applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred and, in that sense, whether it is more likely than not that a violation has occurred.⁷ To establish a case of discrimination, the Applicant must prove the following:

a. He is a member of a group protected by the Code.

b. He was subjected to adverse treatment.

c. A Code ground was a factor in the adverse treatment.⁸

22In this case, the summary hearing and reconsideration decisions focused on the third criterion.

23As indicated above, the Tribunal has the jurisdiction to direct that an application be decided on a preliminary basis through a summary hearing. At paragraph 6 of Dabic, the Tribunal observed that the jurisprudence on the question of “a reasonable prospect of success” will develop as the standard is applied to different factual situations. In that context, the Tribunal made the following initial observations about “the type of inquiry” that may take place in a summary hearing:

8. 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.

9. 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.

A. The decisions are not transparent and intelligible

24The Applicant asserts that the summary hearing and reconsideration decisions are not transparent or intelligible because neither explained why the Applicant had no evidence making the link between race or colour and discrimination.

25In Dunsmuir v. New Brunswick,⁹ the Supreme Court held that on judicial review, “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”¹⁰

26At paragraph 9 of the summary hearing decision, the Tribunal held that the Applicant had made general allegations based on his own belief about why the Respondent’s employees acted the way they did. The Tribunal held that it could not find that the Applicant had a reasonable prospect of proving the link between his race or colour and the alleged differential treatment. In this hearing, counsel for the Applicant did not point to anything in the record that the Tribunal had omitted or ignored.

27The Applicant argues that, in the reconsideration decision, the Tribunal did not ask relevant questions, including the following: Why did the cashier interject? Why did the situation escalate? Why did the Manager not ask the Applicant what he said had happened? In other words, why didn’t the Manager inquire into his side of the story as opposed to relying on what the cashier said? Because the Tribunal did not ask relevant questions, the Applicant takes the position that the decision is not intelligible.

28However, the Applicant’s submissions overlook the fact that the Tribunal does not investigate. Indeed, there is no authority for the Tribunal to ask such questions. The fact that at paragraph 6 of Dabic the Tribunal referred to “the type of inquiry” does not transform a summary hearing into an inquisitorial process.

29The focus of the summary hearing decision was the failure of the Applicant to identify any basis upon which there was a reasonable prospect of success in proving the link between his race or colour and the differential treatment. The Tribunal’s decision that there was no reasonable prospect of proving the link was a question of mixed fact and law that is afforded deference. Moreover, in the reconsideration decision, the Tribunal’s conclusion that the proposed reconsideration did not involve compelling and extraordinary circumstances that outweigh the public interest in finality also attracts deference. Both decisions were transparent and intelligible.

B. The reconsideration decision conflicts with jurisprudence

30The Applicant asserts that the case fell outside the range of possible acceptable outcomes because the Tribunal relied on an implicit finding it made about his behaviour. In that respect, the Applicant argues that the decisions are in conflict with jurisprudence to the effect that behaviour is an irrelevant factor. In the summary hearing decision, the Tribunal made no reference to racial profiling. However, it figures prominently in the reconsideration decision. For that reason, the challenge is only to the reconsideration decision with respect to the racial profiling argument.

31The Applicant took the position that he was “shopping while black,” yet, in the reconsideration decision, the Tribunal held that “the applicant was not simply going about his shopping. He engaged in behaviour that brought attention to him.”

32It is important to put that statement into context. The Tribunal dealt with the jurisprudence on racial profiling and at paragraph 32 held as follows:

This Application is not like the situation examined in Pieters or Phipps. I do not agree that the applicant was in a similar position to situations of racial profiling where he is singled out for attention despite doing nothing other than going about his business. The applicant was not simply going about his shopping. He engaged in behaviour that brought attention to him.

33The Applicant submits that this was an implicit finding of fact against him and a rejection of his assertion that he did not do anything to draw attention. Furthermore the Tribunal implicitly held that the Applicant’s behaviour justified the response by the cashier and by the manager.

34We do not agree that the Tribunal made such findings of fact. Nor do we agree that the Tribunal inappropriately relied on the Applicant’s behaviour in the reconsideration decision. As the context indicates, the Tribunal’s observation about the Applicant’s behaviour was relevant to the Tribunal’s rejection of the submission that the circumstances were analogous to other cases concerning racial profiling.

35The Applicant’s position was that the circumstances constituted “racial profiling.” In the reconsideration decision the Tribunal concluded that the circumstances presented by the Applicant were not in line with the jurisprudence on racial profiling. That is a decision of mixed fact and law that reflects the Tribunal’s highly specialized expertise and is entitled to deference.

C. The Tribunal relied on the Respondent’s version of events

36The third submission is that the decisions are outside the range of reasonable outcomes because the Tribunal relied on the Respondent’s version of events.

37The Tribunal correctly held that it was required to accept that the facts as alleged by the Applicant are true. The Tribunal also described the events based on the information provided by the Applicant. In the reconsideration decision the Tribunal referred to additional information provided by the Applicant at the summary hearing. In both decisions, there is no reference to the information contained in Appendices B and C in Staples’ response nor is there reason to conjecture that the Tribunal relied on the response by Staples without referring to it. It is clear that, in both decisions, the Tribunal relied only on the Applicant’s version of events.

D. Failure to consider evidence that could have been obtained at a hearing

38The fourth submission is that, in denying the Applicant a full hearing on the merits, the decisions are outside the range of reasonable outcomes because the Tribunal did not consider evidence that could have been obtained at a hearing in cross-examination, particularly evidence concerning the Applicant’s allegation that he was racially profiled.

39We have already concluded that the Tribunal is entitled to deference in its finding that the Applicant’s situation was distinguishable from existing jurisprudence on racial profiling. As a result, the Applicant’s racial profiling allegation has been sufficiently addressed and there is no need to consider the Applicant’s claim that he could have elicited additional evidence to buttress his allegation. Nonetheless, we address this issue below.

40The Applicant relies on Peel Law Association v. Pieters¹¹ in submitting that racial profiling “must almost always be inferred from circumstantial evidence,” and as such, “the respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.”¹²

41Moreover, the Applicant pointed out that the Tribunal has recognized the uniqueness of race cases in the summary hearing context. In Dabic at paragraph 10, the Tribunal observed that it “must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent.” As a result, the Tribunal found that this evidence may come through cross-examining the people involved and may ultimately lead to a finding of discrimination.

42Further, the Applicant relies on paragraph 41 of Sinclair v. London Public Library,¹³ which provides as follows:

I am not persuaded that the fact that the same staff member was involved in both incidents, on its own, would be enough to establish a link to the applicant’s race and/or colour. I do find that the staff member’s failure to provide the directive she referred to is a factor that could be used as evidence to establish differential treatment contrary to the Code. This factor is admittedly not much on which to establish the link to a Code ground that is required in this case. However, I am conscious of the fact that it is often difficult for applicants to make out cases of alleged racial discrimination. In such cases, the Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In the context of a summary hearing, the Tribunal is not in a position to hear or weigh evidence as it would in a hearing on the merits. On balance, I cannot dismiss the Application as having no reasonable prospect of success in the circumstances. [Applicant’s emphasis.]

43There are three responses to the Applicant’s submissions on this issue.

44First, as indicated above, the Tribunal made a finding of mixed fact and law that the circumstances as presented did not align with the Tribunal’s jurisprudence on racial profiling. Having made that finding, the Tribunal did not have to consider whether cross-examination would yield evidence on which inferences could be drawn.

45Second, the decision in Sinclair is instructive as to what evidence does lead to a full hearing. In that case, the Tribunal found that the staff member’s failure to provide the directive “could be used as evidence to establish differential treatment contrary to the Code.” While that factor was “admittedly not much on which to establish the link to a Code ground that is required,” the Tribunal held that it could not dismiss the application as having no reasonable prospect of success and therefore a full hearing was required.

46Third, as indicated earlier in this decision, the Applicant is essentially submitting that the words “no reasonable prospect” that the Application will succeed ought to be read as meaning “no theoretical possibility.” The consequence of accepting this submission is that a summary hearing could never be used in race-based discrimination cases. We cannot accept this submission. In paragraph 10 of Dabic, the same paragraph the Applicant relies on, the Tribunal makes it clear that “when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.” The Tribunal found that this is one of those cases and its finding is entitled to deference.

47It is true that discrimination based on race and colour is often not apparent except through the evidence of those against whom discrimination is alleged. But that does not mean that, in every case of discrimination based on race and colour, disposition at summary hearing is not an option. Before ordering a full hearing, there must be something beyond the Applicant’s subjective belief and conjecture, as was the case in Sinclair.

Conclusion

48On a judicial review it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review it is necessary to show that the Tribunal could not reasonably arrive at the decision it did.¹⁴

49We are satisfied that the Tribunal could reasonably arrive at the summary hearing and reconsideration decisions. Both fell within the range of possible, acceptable outcomes in accordance with Dunsmuir.

ORDER TO GO AS FOLLOWS:

50The application for judicial review is dismissed.

51Neither Respondent has asked for costs. Applicant is not required to pay costs.

Morawetz R.S.J.

Kiteley J.

M.G. Quigley J.

Footnotes

1. 12016 HRTO 521 and 2016 HRTO 1307
2. 2R.S.O. 1990, c.H.19
3. 3In the initial decision, the Adjudicator dismissed the claim with respect to reprisal. In the Request for Reconsideration the Applicant withdrew his allegation of reprisal.
4. 4The Applicant originally asserted discrimination on the grounds of race and colour and reprisal. In the Reply he relied on race and gender. The Adjudicator dealt with the application on the original grounds. None of the parties made submissions on the grounds of gender.
5. 52010 HRTO 1994
6. 6Shaw v. Phipps, 2012 ONCA 155, 347 D.L.R. (4th) 616, at para. 10
7. 7F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46
8. 8Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), 325 D.L.R. (4th) 701, at para 47, aff’d 2012 ONCA 155, 347 D.L.R. (4th) 616)
9. 92008 SCC 9, [2008] 1 S.C.R. 190
10. 10Dunsmuir, para. 47
11. 112013 ONCA 396, 363 D.L.R. (4th) 598
12. 12Pieters, para. 72
13. 132014 HRTO 781
14. 14Pieters, para. 132