HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hillel Leopold
Applicant
- and-
YMCA of Greater Toronto
Respondent
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Leopold v. YMCA of Greater Toronto
APPEARANCES
Hillel Leopold, Applicant ) Self-represented
YMCA of Greater Toronto, Respondent ) Genny Na and Melany V.
) Franklin, Counsels
1Hillel Leopold has filed an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in the provision of services by the YMCA of Greater Toronto, on the basis of disability.
2The Tribunal ordered a summary hearing of this Application, on its own initiative, in a Case Assessment Direction (“CAD”), dated April 5, 2011. The purpose of the summary hearing was to determine whether there is a reasonable prospect of success of the Application. In addition, the applicant was required to make submissions on why the individual respondent, Jorge Rojas, should remain as a respondent (Mr. Rojas is an employee of the respondent).
3The summary hearing was conducted by teleconference on July 29, 2011. At the hearing, the applicant agreed to the removal of the personal respondent.
4Hillell Leopold was a long-standing member of the YMCA of Greater Toronto. His membership was cancelled (or terminated) by the respondent on June 15, 2009, because of conduct that was ‘improper” or “unbecoming”, in accordance with its by-laws. The respondent relied on the YMCA Etiquette Statement which provides for cancellation or suspension of membership “for inappropriate behaviour”.
5In its Response, the respondent set out a series of complaints that had been made about the applicant from YMCA members, staff and volunteers over a nine-year period. On March 12, 2009, the applicant was given a written warning that if there was one more incident of harassment involving other staff or members, his membership would be terminated. On May 8, 2009, there was a reported incident of verbal abuse against an off-duty staff member. The respondent states in its Response that as a result of this incident, the applicant’s YMCA membership was terminated.
6The applicant alleged in his Application that the termination of his membership was based on “erroneous allegations and false claims” of witnesses. He stated that he had not been provided with these statements. The applicant stated in his Application that the termination of his membership was based on an allegation of a racial slur. The applicant denies making such a statement. The applicant stated that the culminating incident relied on by the respondent had nothing to do with his allegation of discrimination on the basis of disability.
7The applicant states in his Application that the termination of his membership was the culmination of approximately two years of harassment by Mr. Rojas. The applicant alleges that the harassment arose after a violation of his privacy rights by the YMCA. He then stated: “[m]y termination, it seems, is their license to avoid dealing or repairing the core of the problem”. In his Application, the applicant states that the privacy issue is not part of his Application “but I do believe it is the root of their desire to get rid of me”.
8The incident relating to the alleged violation of his privacy rights involved a member of the YMCA allegedly “berating” the applicant about the use of a disabled parking spot.
9In his Application, the applicant alleges that if he had access to the incident reports about him, he could prove that the guarantees of confidentiality of complaints are false as well as prove “the hurt, pain and humiliation they have caused me as a disabled person”.
10In his Application, the applicant further states that because of his disability he needs access to the facilities provided by the YMCA. He stated that no thought was given by the respondent to his medical state and needs in terminating his membership. He also stated that the termination of his membership was the “culmination of nearly two years of dodging Mr. Rojas, ridiculous allegations by him and the most serious consequences for me, for a ‘rule violation’ that seems to have selective application.”
11The applicant stated that the respondent was aware of his disability and was also aware of his need to use the facility because of his disability.
12The applicant stated that if he had full disclosure of incident reports he would be able to show that he had been discriminated on the basis of disability.
13The respondent submitted that the applicant had not shown a link between the action of the respondent in terminating his membership and a ground of discrimination under the Code. The termination of his membership came after a long history of breaches of the respondent’s rules on behaviour.
14The respondent stated that even a careful review of the Application shows that the applicant is not alleging discrimination based on disability.
15The respondent stated that the reference to an incident involving a dispute about the parking spot was a dispute between two members of the YMCA and the respondent is not implicated in any way.
16The respondent submitted that the applicant has enough knowledge of events to make submissions on the link between disability and the action of the respondent. The onus is not on the respondent to show that there was not a link. A simple assertion by the applicant of discrimination is not enough to show a reasonable prospect of success.
17The applicant submitted that his Application was not about the breach of his privacy rights. The breach of his privacy rights was a separate issue.
18The applicant submitted that the termination of his membership was only about his disability.
Analysis and Decision
19For the reasons which follow I dismiss the Application.
20The applicant has alleged discrimination on the basis of disability. He has also alleged a reprisal for exercising his rights under the Code. It is clear from his submissions that he did not plead any facts to support a reprisal allegation. Accordingly, the reprisal allegation is dismissed.
21The CAD noted that the Tribunal does not have the power to address allegations of unfairness but can only deal with alleged discrimination on the grounds set out in the Code. The CAD also set out the following test that an applicant must meet, in order to establish discrimination on the merits:
…an applicant must prove, on a balance of probabilities, a link between what is claimed to be a disadvantage and the grounds relied upon … If the applicant is unable to establish some reasonable basis to believe that such a link or links could be made at a hearing, the Application must be dismissed as having no reasonable prospect of success.
[emphasis in original]
22The CAD also noted that the applicant did not appear to provide any particulars linking the termination of his YMCA membership to his disability. The CAD noted that an alleged privacy breach was, according to the applicant, at the root of the termination of his membership.
23During the teleconference hearing, the applicant did not provide any further particulars that would establish a link between the termination of his membership and his disability.
24In his Application, the applicant clearly recognizes that the reason provided by the respondent for the termination of his membership was not related to his disability. He seems to state that it was his relationship with the respondent and an originating event related to an alleged breach of his privacy rights that led to the termination of his membership. In his Application he clearly identifies the fact that the termination of his membership has had an impact on his needs related to his disability. This, however, does not transform a non-discriminatory action into a discriminatory one.
25The applicant alleged that there would be evidence in the incident reports that had not been disclosed to him that would show discrimination on the basis of disability. He did not explain how the evidence found in those reports would demonstrate discrimination on the basis of disability.
26In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal addressed the issue of evidence in a summary hearing. The Tribunal recognized that information about the reasons for action taken by a respondent are largely within its sole knowledge. It further noted that evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process or the cross-examination of the people involved. In the absence of full disclosure, the Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. Where 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.
27It is not enough for an applicant to simply state that the evidence will show discrimination. An applicant must be able to articulate how that evidence will show that there was discrimination. The applicant has not been able to show how these incident reports would demonstrate discrimination on the basis of disability. Since he was not able to make this link, there is no reasonable prospect that such evidence would support his allegations of discrimination.
28Accordingly, the Application must be dismissed.
Dated at Toronto, this 12th day of August, 2011.
”signed by”________
Ian R. Mackenzie
Vice-chair