In a decision released on February 12, 2013, the Human Rights Tribunal of Ontario dismissed an application filed by a high school student who claimed he experienced discrimination contrary to the Human Rights Code (the “Code”).

In Marshall v. Dufferin-Peel Catholic District School Board, Jordan Marshall alleged that an incident in his Grade 11 Biology class at d’Youville Secondary School (“d’Youville”) which resulted in a suspension, and his experience in an extra- curricular entrepreneurship program amounted to discrimination on the basis of his race and colour. Mr. Marshall self-identifies as black. The Tribunal dismissed the application, finding that Mr. Marshall had failed to show, on a balance of probabilities, that there was a link between his race and colour and the suspension or entrepreneurship program.

Mr. Marshall’s claim of discrimination arose principally from an incident in Grade 11 Biology class. Mr. Marshall was suspended for five days for bumping into his teacher as he walked behind her. The Grade 11 Biology teacher alleged that during Biology class while walking behind the teacher’s lab bench, Mr. Marshall touched the teacher’s backside. Mr. Marshall’s parents appealed the suspension. The appeal process consisted of a statement read by d’Youville’s principal and a statement read by Mr. Marshall’s stepfather. The trustees voted to expunge the suspension. Mr. Marshall was transferred to a Grade 11 Biology class taught by another teacher.

At the Human Rights Tribunal hearing, the Tribunal heard evidence from Mr. Marshall, his mother and his step-father. All witnesses were subject to cross-examination by the school board. Prior to calling its witnesses, the school board requested the application be dismissed under Rule 19A of the Tribunal’s Rules of Procedure because it appeared, based on Mr. Marshall’s evidence, that the application had no reasonable prospect of success.

An application will be dismissed by the Tribunal if an applicant does not prove, on a balance of probabilities, that this or her Code rights were violated. This requires an applicant to show a link between an event or adverse treatment and the alleged prohibited ground under the Code.

In his evidence before the Tribunal, Mr. Marshall testified that his teacher was unfair to him because he was ‘a black male’. He claimed that teachers at the school ‘hid the bias toward black students’. Mr. Marshall suggested the bumping incident was a way to get him out of the class.

Mr. Marshall’s mother, Wendy O’Hare, also testified, although she had no direct evidence of the bumping incident. She stated that her son’s Grade 11 Biology teacher thought her son was a black male and therefore a ‘black thug’. Mrs. O’Hare told the Tribunal she knew in her ‘gut’ and her ‘soul’ that the teacher was a racist and looking for any excuse to get rid of Mr. Marshall from her class. On cross-examination, Mrs. O’Hare admitted that she, not the school board, had characterized the bumping incident as an allegation of sexual assault.

The second incident related to an extracurricular entrepreneurship program. The Tribunal found that Mr. Marshall missed and/or was late to the Saturday meetings and then dropped out. The Tribunal ruled that Mr. Marshall failed to show any differential treatment. He had admitted in his testimony that his own actions caused the end of his participation.

The Tribunal found that Mr. Marshall’s allegations amounted to a ‘bald assertion that his race must have been a factor in his suspension.’ The Tribunal stated that Mr. Marshall’s own certitude, and that of his witnesses, was not sufficient to establish a violation of the Code.

The Tribunal concluded that Mr. Marshall’s suspicions about his teacher were based on ‘sweeping and speculative allegations’ of discrimination at the school.

The Tribunal stated that the applicant’s own feeling or suspicions are not sufficient to meet the test for establishing an application has a reasonable prospect of success.

It ruled:

“The applicant is required to demonstrate a reasonable prospect that he can prove, on a balance of probabilities that his Code rights were violated. Specifically he must show a link, connection or nexus between his race  and colour and the differential treatment being claimed, that is, the suspension. In my view, the applicant failed to show any such link.”

The Tribunal found that an applicant must do more than point to his membership in a racialized group and adverse treatment to establish a case of discrimination. In this case, the Tribunal concluded that the application had no reasonable prospect of success. Accordingly, the Tribunal dismissed Mr. Marshall’s application without further hearing.