Denyer v. University Health Network, 2011 HRTO 2320

Human Rights Tribunal of Ontario

B E T W E E N:

Brian Denyer

Applicant

-and-

University Health Network

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: December 28, 2011

Citation: 2011 HRTO 2320

Indexed as: Denyer v. University Health Network

Appearances

Brian Denyer, Applicant ) Self-Represented )

University Health Network, Respondent ) Naomi Margo, Counsel

INTRODUCTION

1This is an Application alleging discrimination under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated July 13, 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 address the 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

6On February 2, 2010, the applicant underwent surgery resulting in the amputation of bones in his foot. The applicant spoke in advance with his surgeon and expressed his desire to retain the bones after the surgery in accordance with his Pagan beliefs. The applicant understood that the surgeon agreed to preserve the bones for him.

7Following the surgery the applicant found that it was no simple matter to acquire the bones because of the highly regulated process the respondent is required to follow to release them.

8Without going into the full details, the respondent determined that it was able to release the bones to the applicant provided that the bones were directly released to a funeral home or upon receipt of a burial certificate. The applicant wished to have the bones released directly to him.

9When this matter was set down for a summary hearing, it appeared from the materials that the applicant objected to the conditions for release on the basis of cost. As a result, the matter was set down for summary hearing on the basis that the Code does not provide protection from discrimination on economic grounds. The applicant was able to clarify during the summary hearing that his objection is not economic. The applicant argues that the bones must be released to him personally in order to ensure that they are handled and maintained in a manner which is consistent with his religious beliefs.

10This matter cannot be resolved on a summary basis without further evidence. At this stage I must proceed as if I accept the applicant’s allegations about the connection between his religious beliefs and the respondent’s policy. He will have to provide proof of this connection as part of his testimony. There are also questions about the respondent’s authority to release the bones, how much (if any) discretion was exercised and the extent to which the applicant’s individual circumstances were taken into consideration in the decision-making process, all of which can only be resolved by evidence.

11As a result, I cannot say that there is no reasonable prospect of success. The parties indicated in the application and response that they were interested in participating in mediation. I refer this matter back to the Registrar to schedule a mediation.

12I am not seized.