Stangret v. Toronto Transit Commission, 2009 HRTO 596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerrald Stangret

Applicant

-and-

Toronto Transit Commission

Respondent

Case Resolution Conference decision

Adjudicator: David Muir

Date: May 8, 2009

Citation: 2008 HRTO 596

Indexed as: Stangret v. Toronto Transit Commission

AppearanceS BY

Gerrald Stangret, Applicant ) on his own behalf

Toronto Transit Commission, Respondent ) Steve Lavender,

) Counsel

1This is an Application filed September 11, 2008 under section 53(3) of the Part IV of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). A Case Resolution Conference (CRC) hearing was held in Toronto on April 29, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant and Mr. Morin and Mr. Morrow, both employees of the respondent Toronto Transit Commission (TTC).

2The applicant alleges that his right to be free from discrimination on the basis of disability has been infringed by the respondent. The applicant uses a walking stick.

3The applicant relies on two incidents. The interactions between him and the two employees of the TTC who gave evidence were recorded by him. The applicant testified that he carries a recording device when travelling the TTC.

4In the first incident the applicant alleges he was on the College streetcar (eastbound) on April 30, 2007. A short time after he sat down, the operator Mr. Morrow, came to speak to him about his transfer.

5The applicant entered the TTC at the Dupont subway station. A transfer indicates that he was there at 2:18 p.m., and proceeded to the Spadina station. He then took a Spadina streetcar south to College. His ultimate destination was Bay and Dundas. The applicant chose this somewhat indirect route because he prefers surface routes to the subway. It took longer than normal because, unbeknownst to him, the moving sidewalk in Spadina station had been removed and he had to wait for two streetcars in Spadina station.

6Mr. Morrow agreed he was operating the streetcar in question and that it is his voice on the applicant’s recording. Both Mr. Morrow and the applicant agreed that the applicant boarded the streetcar about 3:00 p.m. Mr. Morrow testified he asked about the transfer because he had seen the applicant approach the vehicle from the north side of College and not from the southbound Spadina streetcar stop. The applicant agreed he approached the streetcar from the north because he had been standing on the sunny side of the street. Mr. Morrow testified he also wondered about the length of time it had taken the applicant to get from Dupont to College Street.

7The applicant alleges Mr. Morrow came to his seat to ask about the transfer to demean, bully and discriminate against him because he is disabled. He agrees that it is a part of the duties of a TTC operator to enforce the fare rules, including inspecting transfers when there is a reasonable basis for doing so, and there was some basis for the operator’s request to inspect his transfer. In his view what turns the event from a routine inspection into a violation of the Code is the fact that the challenge took place after the applicant was seated rather than at the entrance and that the operator left his seat and came to the applicant.

8Mr. Morrow denies leaving his seat citing TTC policy and training that employees not leave their seats to challenge passengers who have made their way onto a TTC vehicle.

9I have carefully considered the evidence including reviewing the audio recording and have concluded that it is more likely than not that Mr. Morrow challenged the applicant after he had passed the fare box. On the audio recording Mr. Morrow is heard asking, faintly, to see the applicant’s transfer “again”. Then, he is heard saying more clearly and distinctly, “Hi, can I see your transfer, again”, as if he were approaching the applicant. I find based on the audio recording and that Mr. Morrow asked twice to see the transfer again confirms Mr. Morrow was approaching the applicant as he made his requests. This suggests this interaction took place at some point after passing the fare box and is more consistent with the applicant’s testimony that Mr. Morrow approached him after he was seated.

10I have also considered whether or not this fact transforms what was an otherwise routine and justified challenge to the transfer into an attempt to demean, bully and discriminate on the basis of his disability. I do not think that it does. Mr. Morrow had a reasonable basis for his challenge. His initial questioning of the applicant was respectful and continued to be so despite the applicant’s initial defensiveness which quickly evolved into belligerence. Mr. Morrow conceded that he too became belligerent and that this was inappropriate. I find that this was in response to the applicant’s behaviour and increasing belligerence. There is no evidence Mr. Morrow treated the applicant differently than any other passenger and in the end he appears to have accepted the applicant’s explanation and permitted the applicant to continue on his way to his final destination.

11The Application as it relates to this incident is dismissed.

12The second incident occurred on May 10, 2007. The applicant entered the subway going eastbound from Yonge to Warden Station at approximately 1:00 p.m. on a weekday.

13On the typical TTC train there are two employees, a driver and a guard. Among other things the guard is responsible for opening and closing the doors. Passengers in the two seats opposite the guard’s cab are often asked to move in order to allow the guard access to the window and the door controls located there. When access is not required the guard typically returns to the cab. The type of car the applicant entered that day allows the cab door to be locked “open” creating a physical barrier to the seating area opposite from the cab. This was in place when the applicant entered the car.

14Mr. Morin was the guard on the train in question. While conceding he was not required to access the door controls opposite the cab for much of the remainder of the trip, Mr. Morin testified about other reasons why access to the opposite cab window might be required, and asserted that TTC policy allows the guard to close that area off at all times and that it is his normal practice to do so. If the train is crowded he will vary this practice. Mr. Morin testified there were several seats readily available for the applicant.

15The entire conversation between the applicant and Mr. Morin was recorded. The applicant asked to access the seats opposite the guard cab. Mr. Morin declined saying he was entitled to close the entire area to the public. The applicant responded he had never heard of such a rule and asked Mr. Morin if he was making it up. Mr. Morin replied that he was not making the rule up and indicated that there were other seats readily available. The applicant asked Mr. Morin if he would mind if he contacted the TTC to enquire about this rule. Mr. Morin replied no, and advised the applicant to be sure to get the car number down in order to properly identify the car in question.

16The applicant recorded the car number as 5115. He claimed the configuration of that car was not as depicted in pictures provided by the TTC. The pictures show a cab door locked open against the second of two sets of subway seats running perpendicular to the side of the car, closing off access to the area behind the door and the seats. The applicant insisted the second set of seats ran along the side of the car. He could not describe how the cab door could be locked in such a configuration.

17Mr. Morin confirmed car 5115 would be a T-5 series car and is the only type of car in which the cab door can be locked to prevent access to the area opposite the cab. He independently recalled the car he worked on the day in question was a T-5 series.

18In the circumstances I find, on a balance of probabilities, the respondent’s evidence with respect to configuration of the subway car on which the dispute occurred is more reasonable and probable.

19It is also clear from the evidence before me that there were other seats in the train, easily accessible to the applicant. The applicant claimed there were no seats available in the car and that he walked to the other end of the car and stood. Mr. Morin’s evidence was that many other seats were available. Although it does not matter greatly to the result, I prefer Mr. Morin’s evidence on these issues. First, in the early afternoon on a weekday, it is more probable than not that seats would be readily available. Second, the applicant’s insistence that the configuration of the car provided by the TTC was wrong casts significant doubt on his recollection of events that day. I am satisfied his version of the configuration of the subway car is one that does not exist and makes no sense in light of the allegations in his complaint. Finally, in the audio recording Mr. Morin suggests that there are seats readily available. The applicant does not dispute or respond that there is already a person sitting there or that there is no room for him.

20The applicant believes the law requires the TTC to make those seats available to him, as a disabled person, if he asks for them and this right trumps the right of the TTC to allow its operators to close that area off to the public. It would not matter if the car was empty, the applicant asserts he was entitled to sit in those seats because he was disabled and he preferred to sit there.

21This evidence discloses no violation of the Code. There is no question that there were seats readily available. More generally there is no evidence that the policy or practice of the TTC which allows the guard to close off one small area of one car of a multi-car subway train results in any differential treatment of the applicant that would amount to a violation of the Code.

22The Application as it relates to this incident is dismissed.

Request for a vexatious litigant order

23The respondent sought an Order to prevent the applicant from bringing any further applications against it without leave of the Tribunal. In support the TTC relied on the fact that the applicant has filed three human rights complaints and commenced several small claims court actions as well as the applicant’s repeated threat, made during the CRC, to purchase a video recording device to enhance the evidence he will be able to bring when the TTC next violates his rights under the Code. After the CRC was completed the respondent submitted a copy of a Tribunal decision regarding another human rights proceeding involving the applicant and other issues and parties.

24While all of the matters in which the TTC is a party have been dismissed, in the respondent’s submission by being forced to respond to vexatious applications the TTC, and ultimately the taxpayer, is put to considerable expense. This is both fundamentally unfair and an abuse of the Tribunal’s processes.

25The remedy sought by the TTC is an extraordinary one. No specific provision of the Code was relied upon as providing the express power to make such an Order.

26The only authority relied upon by the respondent was a decision of the Ontario Labour Relations Board in Douglas and Laundry and Linen Drivers and Industrial workers Union, Local 847, May 24, 2002, Board File # 1504-01-M. However, I note that the Labour Board has an express power to bar an unsuccessful applicant for a period of time. I also note that the record relied upon in the cited decision were all applications made to the Labour Board, whereas here the applicant’s history relates to proceedings in other forums.

27While the power to make such an Order might flow from the inherent right and responsibility of the Tribunal to prevent an abuse of its processes, I am not prepared to make such an Order in these circumstances.

ORDER

28For all of these reasons the Tribunal makes the following Order:

a. The Application is dismissed.

b. The respondent’s request for an Order barring the applicant from making further Applications without leave of the Tribunal is dismissed.