HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret Way

Applicant

-and-

Coalition Against Psychiatric Assault

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 28, 2011

Citation: 2011 HRTO 1234

Indexed as: Way v. Coalition Against Psychiatric Assault

appearances BY

Margaret Way, Applicant ) Self-represented

Coalition Against Psychiatric Assault, ) Dr. Bonnie Burstow,

Respondent ) Representative

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

BACKGROUND

2The Coalition Against Psychiatric Assault (“CAPA”) is a small grassroots activist organization, which opposes pathologization and human rights violations in the psychiatric system.

3On July 8, 2010, the applicant, who identifies as a Roman Catholic, heterosexual member of CAPA, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to services because of her creed and sexual orientation, and a perceived disability.

4Specifically, she alleged that she attended a CAPA meeting where the Chair, Dr. Bonnie Burstow, made anti-Christian comments.

5She also alleged that almost all members of CAPA are gay, lesbian and Jewish, and that the members who are lesbian and Jewish have most of the authority in CAPA.

6She further alleged that CAPA has a video of her discussing a perceived disability, which should be expunged. She stated that she does not have a disability.

7On September 20, 2010, the respondent filed a Response, which denied the applicant’s allegations of discrimination, but stated that it was difficult to respond to her allegations because of their vagueness.

8Specifically, the respondent denied that Dr. Burstow made anti-Christian comments at a CAPA meeting,

9The Response also denied that almost all members of CAPA are gay, lesbian and Jewish, and that the members who are lesbian and Jewish have most of the authority in CAPA.

10The Response admitted that the respondent has a video of a public hearing, which shows the applicant, but denied that this constitutes discrimination on the basis of disability.

11The applicant filed a Reply on November 9, 2010, which specified Dr. Burstow’s discriminatory comment as: “You know how we feel about Christians.” She stated that Dr. Burstow then turned to her and stated: “Sorry Margaret.”

12The applicant also filed a letter with the Tribunal on December 7, 2010, which stated that the respondent denied her request to be on the executive of CAPA. The letter also stated:

My Application against CAPA concerns the fact that Jewish people and Lesbians dominate this organization. I have never encountered a Catholic heterosexual like myself at the meetings.

The letter also specifically named a member of the CAPA executive, whom she identified as “Jewish and Lesbian”.

13On February 4, 2011, the Tribunal issued a Case Assessment Direction (“CAD”), which informed the parties that a summary hearing would be scheduled to hear submissions from the parties on whether the Application has a reasonable prospect of success.

14The applicant filed a letter with the Tribunal on February 19, 2011 in response to the CAD, which again identified the CAPA executive member by name, identified her as “Jewish and Lesbian”, and stated that she has “all the executive powers” at CAPA and “run[s] the show to this day”.

15The summary hearing took place by conference call on June 16, 2011. I heard submissions from the applicant and Dr. Burstow.

PRELIMINARY ISSUE

16On February 20, 2011, the applicant filed a Request for an Order During Proceedings, which requested, among other things, that the Tribunal anonymize her because this case deals with highly personal information, which could jeopardize her reputation. She referred, in particular, to an incident that occurred in 2003.

17On February 28, 2011, the respondent filed a Response, which opposed the applicant’s Request because there is no confidentially at a hearing, and it was the applicant who raised the 2003 incident in her Application.

18Rule 3 of the Tribunal’s Rules of Procedure provides for open justice, subject to limited exceptions:

3.10 The Tribunal’s hearings are open to the public, except when the Tribunal determines otherwise.

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

3.12 All written decisions of the Tribunal are available to the public.

19S. 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 also provides:

An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests if any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.

20Furthermore, in C.M. v. York Region District School Board, 2009 HRTO 735, this Tribunal stated at para. 20:

(…) An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. I agree with the respondents that it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particular parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

21In my view, the principle of open justice outweighs the applicant’s interest in anonymity in this case. The 2003 incident, which has only been raised in any detail by the applicant, is not relevant to this Decision, and will not be discussed any further. Furthermore, the applicant has made serious allegations of discrimination against the respondent, and, as will be discussed below, has alleged, without substance, that the respondent is controlled by Jews and lesbians, one of whom she identified by name several times in the materials that she filed with the Tribunal. It would not be appropriate to allow the applicant to make allegations of this nature against the respondent and the individual in question (who is not named as a respondent) behind a shield of anonymity.

22Accordingly, the applicant’s Request for anonymity during these proceedings is denied.

RELEVANT RULE AND CASE LAW

23Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, 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 the Application will succeed.

24Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10

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.

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.

In considering what evidence is reasonably available to the applicant, the Tribunal 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. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, 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.

SUBMISSIONS

25The applicant submitted that Dr. Burstow’s comment, “You know how we feel about Christians,” was discriminatory because it was hurtful to her. She stated that the comment implied that Christians do not like gays and lesbians.

26The applicant also submitted that the respondent’s denial of her request to serve on CAPA’s executive, and the fact that CAPA members generally refused to talk to her, was discriminatory. She stated that she was very uncomfortable at CAPA meetings because she appeared to be the only person in attendance who was Christian and heterosexual.

27However, in response to my questioning, the applicant admitted that she does not know the size of the membership of CAPA, that she only knows two CAPA members by name, and that her view that the CAPA membership is predominantly Jewish and gay and lesbian, and the executive is controlled by Jews and lesbians, is her impression from attending meetings and talking to people.

28The applicant further submitted that the respondent’s videotaping of her was discriminatory because the respondent subsequently showed the videotape publicly and sold it on DVD without obtaining a release from her.

29Dr. Burstow denied that she made an anti-Christian comment during a CAPA meeting. She submitted that there are no witnesses who will corroborate the applicant’s allegation that she made such a comment.

30Dr. Burstow also denied that the respondent ever received a request from the applicant to serve on the organization’s executive. She submitted that the applicant’s allegation of discrimination is based on stereotypes and bigotry about Jews and gays and lesbians. She acknowledged that CAPA has Jewish and gay and lesbian members, but stated that its membership and executive are predominantly Christian and heterosexual. She stated that she is particularly troubled by the fact that the applicant is relying on stereotypes about Jews controlling everything, and that she has specifically named and identified a Jewish member of CAPA.

31Dr. Burstow also admitted that the applicant is on a video, which CAPA sells to the public, but she submitted that the video is of a public hearing, and CAPA does not own the rights to the video. She also stated the applicant knew that the hearing was being videotaped, and she is only shown as a member of the audience.

32In reply, the applicant stated that, because she has a close family member who is gay, she could not be bigoted. She also admitted that the video does not show her speaking about a perceived disability, but maintained that the video is discriminatory because she was filmed without her consent.

DECISION

33I find that there is no reasonable prospect that the Application will succeed.

34The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 defined discrimination at pp 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

35Moreover, the Code is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

36With respect to the applicant’s first allegation, assuming it is true, in its worst light, Dr. Burstow made a comment at a CAPA meeting that implied that all Christians are homophobic, and then turned to the applicant, who is Roman Catholic and heterosexual, and apologized for making the comment.

37Court and tribunals have recognized that a single comment can amount to a breach of the Code, but only in limited circumstances. In Hadzic v. Pizza Hut Canada (c.o.b. Pizza Hut), [1999] B.C.H.R.T.D. No. 44, the British Columbia Human Rights Tribunal (“BCHRT”) stated at para. 33:

The context within which the racial/religious harassment occurs is important. Usually repeated conduct is required to establish racial/religious harassment. However, if the conduct is considered extreme, there is less need to establish a pattern of behaviour and a single act may be sufficient evidence: Bell v. Flaming Steer Steak House (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd. Inq.).

38Furthermore, in Pardo v. School District No. 43, 2003 BCHRT 71, the BCHRT stated at para. 12:

(…) all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.

39In my view, a single comment that implies that all Christians are homophobic is inappropriate, but is not sufficiently extreme, egregious or virulent as to constitute discrimination, particularly when it is followed by an immediate apology.

40The applicant’s second allegation, that the respondent denied her request to be on the executive of CAPA, and CAPA members generally refused to talk to her, because she is Roman Catholic and heterosexual, if true, would establish a prima facie case of discrimination. However, in my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated because she intends to rely on homophobic and anti-Semitic prejudices and stereotypes, rather than evidence, to show a link between the events and her creed and sexual orientation.

41With respect to the applicant’s third allegation, assuming it is true, the respondent’s creation, possession and sale of a video, which has silent footage of the applicant at a public hearing where she discussed her perceived disability, does not amount to discrimination, even if she was filmed without her consent. I cannot see how this amounts to differential treatment, let alone disadvantage, based on a perceived disability.

ORDER

42The Application is dismissed.