HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Pampena Applicant
-and-
City of Toronto and Mike Del Grande Respondents
DECISION
Adjudicator: Leslie Reaume Date: December 8, 2011 Citation: 2011 HRTO 2217 Indexed as: Pampena v. City of Toronto
Appearances
Joseph Pampena ) On his own behalf Applicant ) )
City of Toronto ) Antonella Ceddia Respondent ) Matthew Longo ) Counsel
Mike Del Grande ) Melanie Franklyn Respondent ) Counsel
INTRODUCTION
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of disability.
2The applicant, who is blind, was a candidate for mayor of Toronto in the 2010 election. He wanted to participate in a candidate debate that took place on March 29, 2010 and was organized by respondent Del Grande, particularly to represent the issues and perspectives of the community of people with disabilities. The applicant takes exception to his exclusion from the panel and the manner in which respondent Del Grande handled the issue.
3By Case Assessment Direction dated February 7, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure for the following reasons:
The debate does not appear to be been sponsored by the respondent City or organized by respondent Del Grande in his role as a city councillor, but rather as a private citizen. The debate appears to have been limited to the front-running candidates and it appears that the applicant was not among this group. The applicant has not provided any evidence or reasons to indicate that his disability played any role in his exclusion from the debate panel and, as argued by both respondents. Moreover, it may be that the allegations do not fall within the social area of “services” contained in the Code. The applicant does not make any specific allegations against the respondent City.
4The Tribunal also directed the parties to prepare for the Summary Hearing as follows:
The applicant will make his argument first. He shall be prepared to explain how he can prove, on a balance of probabilities, that he experienced discrimination with respect to services on the basis of disability, and the evidence he would use to establish his allegations. In particular, the applicant shall be prepared to explain how there is a service relationship between him and respondent Del Grande and to detail the specific allegations he is making against the respondent City. Further, the applicant shall be prepared to respond to the respondents’ arguments in support of the dismissal of the Application on a preliminary basis.
ANALYSIS
Summary Hearings
5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the 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.
6In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
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.
7As the Tribunal indicated in the Case Assessment Direction, the HRTO does not have the power to deal with all claims of unfairness, or all disputes between parties. It can only deal with applications alleging a violation of the Code, which prohibits discrimination and harassment on specific grounds in the context of specific areas. The applicant must establish that the respondent treated him differently as compared to others based on his disability, and that such treatment caused him a disadvantage, resulting in discrimination.
Application to the Facts
8The basic facts of this case are not disputed. Respondent Del Grande organized a debate with candidates who were running in the 2010 Mayoral race. The debate took place on March 29, 2010 at Mary Ward Catholic Secondary School. The applicant asked to participate in the debate and was refused.
9The applicant was asked during the hearing to address the two primary issues identified in the Case Assessment Direction: the connection between his disability and his exclusion from the debate and how the matter fit within the social area of services under the Code. The applicant also raised a concern during the hearing that although he had not attended the debate, he was told that the facilities where the debate was held were not accessible to people in wheelchairs. The applicant confirmed, however, that he was not pursuing this as a separate allegation, but offering it as part of the context for evaluating his allegations against the respondents.
10This applicant did not disagree that the City of Toronto was not affiliated with the event. On this basis alone, the Application against the City is dismissed.
11The applicant was unable to point to any evidence which would rebut the respondent’s position that the criteria used for inviting people to the debate were whether they were generally considered to be the front-runners in the campaign. The applicant did not dispute that he was not considered a front-runner.
12There is no doubt that the applicant would have been able to bring an important perspective to the debate. However, he is unable to point to any evidence that he has or which is reasonably available to him to prove that his exclusion from the debate was linked in any way with his disability.
13Given this conclusion I have not found it necessary to decide the question whether the organization of a public debate in one’s personal capacity constitutes a service under the Code. I have found that the mere fact that City of Toronto staff were responding to the applicant’s initiatives to speak with respondent Del Grande is not sufficient to establish that the debate was in any way a service offered by the City of Toronto or a service offered by a city councillor operating in his professional capacity.
14There is no evidence which would permit the Tribunal to find that there is a connection between the applicant’s experience and the prohibited ground of disability.
15Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.
Dated at Toronto, this 8th day of December, 2011.
”signed by”
Leslie Reaume
Vice-chair