Macyshyn v. St. Joseph’s Health Centre Toronto, 2011 HRTO 2263

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zenon Macyshyn

Applicant

-and-

St. Joseph’s Health Centre Toronto

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: December 16, 2011

Citation: 2011 HRTO 2263

Indexed as: Macyshyn v. St. Joseph’s Health Centre Toronto

APPEARANCES

Zenon Macyshyn, Applicant ) Self-Represented )

St. Joseph’s Health ) Michele M. Warner, Counsel Centre Toronto, Respondent )

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 on the basis of disability.

2By Case Assessment Direction dated July 18, 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. The applicant was directed to proceed first and to point to evidence which could prove a link between the alleged actions of the respondents and a ground under the Code.

ANALYSIS

Summary Hearings

3The 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.

4In 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.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

Application to the Facts

6The respondent was not required to provide a response. Both parties filed materials for the summary hearing.

7The applicant sets the out following allegations in his application:

1. On around 2010 I was attended to the Crisis Unit and the Hospital Security took my full clothing of my dark black suit. When I was discharged the security said that they lost my top suit and blue tie with 45 degrees lines down different blue colors.

2. On June 2, 2011 I was attended to the Crisis Unit and during my time I noticed that $100.00 Canadian dollars bill was missing. Hospital security said they cannot find it. I had four bills and now I have only 3 bills. I am discharged today June 15, 2011.

During this time I had my house key in my pocket and then it disappeared in my pocket and then appeared in the closet in 7M.

8The applicant was given an opportunity during oral submissions to explain what evidence would be available to prove a link between his allegations and the prohibited ground of disability. The applicant explained in detail why he was dissatisfied with the loss of his personal items. The applicant argued that the respondent’s policies and procedures governing the loss of personal items are flawed and he would like to see them changed. The applicant also complained directly to the respondent and was dissatisfied with the respondent’s investigation and resolution which involved a payment to him of approximately $96.00.

9The loss occurred while the applicant was a patient and this, in the applicant’s view, is sufficient to demonstrate the necessary connection between the alleged conduct on the part of the respondent and the ground of disability. However, the legal test for discrimination requires proof of a different kind of connection. The applicant must show that the alleged conducted on the part of the respondent occurred in whole or in part because of the applicant’s disability. The applicant must have evidence to demonstrate that he was treated differently because of his disability. In this case, the applicant was dissatisfied with the loss of his personal items and how that loss was dealt with under the respondent’s policy, but there is no evidence that the loss occurred because the applicant is a person with a disability.

10Even if I accepted the applicant’s allegations about the loss of his personal items and how that situation was handled there is no evidence that this conduct on the part of the respondent was based in whole or in part on the applicant’s disability.

11Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.