Simmons v. Trillium Health Centre, 2009 HRTO 1469

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Simmons

Applicant

-and-

Trillium Health Centre, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation, Michael Ostro and Sylvia Fahim

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: September 14, 2009

Citation: 2009 HRTO 1469

Indexed as: Simmons v. Trillium Health Centre

1The applicant, who is self-represented, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on January 26, 2009, alleging discrimination in employment on the ground of disability. On March 23, 2009, the Applicant also filed a Form 1-C, which refers to allegations of discrimination in the area of goods, services and facilities.

2The respondent identified by the applicant as Mississauga Trillium Hospital identifies itself in its Response as Trillium Health Centre (“Trillium”). In the circumstances the style of cause is amended to reflect the correct corporate name

3Trillium’s Response was somewhat limited, as it stated that it required further information so as to identify the correct patient and respond to the allegations. It has since received that information in the Response of the Ministry of Transportation.

4Subsequent to its Response, Trillium filed a Request for Order During Proceedings. Trillium requests that the Tribunal dismiss the Application against Trillium on the basis that it fails to establish a prima facie case of discrimination under the Code. Trillium states that occasional “high blood pressure” does not meet the definition of “disability” set out in the Code. In addition, Trillium argues that the allegations in the Application do not relate to the social area of employment. Finally, Trillium asserts that the applicant has not pled “any facts or events that would amount to discrimination”. This is Interim Decision addresses Trillium’s Request.

Dismissal on the basis of no prima facie case stated

5It is only in very rare cases, in which the facts and issues are very simple and clear, and clearly outside the Tribunal’s jurisdiction to decide, that the Tribunal may dismiss on the ground that an application fails to disclose a breach of the Code, without giving an opportunity to make oral submissions. In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal reiterated that, while the onus is on the applicant to establish a prima facie case of discrimination, the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to the applicant, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. The Tribunal set out the approach it uses where the matter is at such a preliminary stage that no evidence has been presented:

In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, at paras. 21-22). (above, at para 6)

6In this case, there is no clear bar to the Tribunal’s jurisdiction. Trillium notes that the report to the respondent Ministry would have been filed pursuant to the requirements of s. 203 of the Highway Traffic Act, R.S.O 1990, c.H.8 (the HTA), and permitted under s. 36(1)(h) of the Regulated Health Professions Act, S.O. 1991, ch.18. However, these facts, while relevant and important to the issue of whether the Code was breached, are not necessarily a jurisdictional bar to an Application under the Code. The Code has primacy over all other legislation in Ontario, unless the other legislation states that it prevails over the Code.

7Trillium’s argument concerning occasional “high blood pressure” not meeting the Code definition of “disability” may certainly be made in the context of a hearing, but must be weighed in the light of a broadly-worded and open-ended statutory definition, and in the light of instructions from the Supreme Court of Canada about the correct “fair, large and liberal” interpretation of human rights legislation (see for example Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, [2000] 1 S.C.R. 665, - 2000 SCC 27). Further, the facts so far submitted by the parties indicate that the disability at issue here may be a stroke.

8In respect of Trillium’s argument that the allegations in the Application do not relate to the social area of employment, it is clear that, at least on a reading of the materials filed, the Application is concerned with the area of goods, services and facilities. On March 23, 2009, the Applicant served and filed a Form 1-C, which refers to allegations of discrimination in the area of goods, services and facilities. It is possible that the applicant, who is self-represented, plans to request an amendment to change the social area he wishes the Tribunal to consider. Section 40 of the Code requires the Tribunal to adopt procedures and practices that “offer the best opportunity for a fair, just and expeditious resolution of the merits of the application”. In view of the fact that parties are frequently self-represented, the Tribunal is liberal in its approach to allowing amendments, as long as there is no serious prejudice to any party.

9Trillium’s Request for early dismissal on this basis is refused.

Dismissal on the basis of delay

10In the alternative, Trillium requests dismissal on the basis that the applicant has not adhered to the timelines set out in the Code. As noted above, this Application was filed on January 26, 2009.

11The Response of the Ministry of Transportation (the “MOT”), which has been delivered to all parties, has confirmed that on June 29, 2007, the Deputy Registrar of Motor Vehicles for Ontario (the “Deputy Registrar”) received a physician’s report pursuant to s.203 of the HTA, from a physician who treated the applicant in the emergency room of the Mississauga Trillium Hospital, stating that the applicant had suffered a stroke making it difficult for him to drive safely. The report was therefore presumably sent to the Ministry several days previous to June 29, 2007.

12Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

34. (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.

13Clearly, this Application was filed some eighteen months after the date that a doctor at Trillium may have filed a report that gave rise to the suspension of the applicant’s driver’s license. Thus the Application was made some six months past the time set out in the Code.

The applicant has not filed a separate Response to Trillium’s Request for an Order During Proceedings, which was apparently served on him as of July 23, 2009. However, in his Reply, filed on August 4, 2009, he addresses briefly addresses the delay issue. He indicates that, after his release from the hospital “ a note should have been written to give me back my license…This sounds to me like a continuation of the hospital and its representatives not doing their jobs…a continuation of their originally not doing their jobs…”. This appears to be an argument that the alleged breach of the Code by Trillium is ongoing, in the applicant’s view.

14Recent decisions of the Tribunal, such as Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, have addressed the factors the Tribunal will consider in deciding whether to dismiss for delay.

15The Registrar will schedule a half-day teleconference to hear from the parties as to whether the Application should be dismissed against Trillium on account of the alleged delay.

16The following directions shall apply to the teleconference:

(a) The applicant should be prepared to explain why he believes that the breach of the Code by Trillium is continuing or, if not continuing, why his delay was incurred in good faith and how no substantial prejudice will result to any person affected by the delay.

(b) The respondents will be given an opportunity to respond to the applicant’s submissions.

(c) Any party who wishes to rely on any written materials (including written submissions or documents) in addition to the submissions already filed, or rely on any facts not contained in the Application and Response, must deliver them to the other party and file them with the Registrar within 14 days of the date of this decision.

17I am not seized of this matter.