Keep v. Shriner’s Creek Co-op, 2011 HRTO 277

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Keep

Applicant

-and-

Shriner’s Creek Co-op

Respondent

AND BETWEEN:

Grant Dobson

Applicant

-and-

Shriner’s Creek Co-op

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 10, 2011

Citation: 2011 HRTO 277

Indexed as: Keep v. Shriner’s Creek Co-op

APPEARANCES

Elizabeth Keep, ) Self-represented Grant Dobson, Applicants )

Shriner’s Creek Co-op, Respondent ) Brandon M. Boone, Counsel

1A Summary Hearing was held to determine whether these Applications should be dismissed in whole or in part, on the basis that there is no reasonable prospect that they would succeed. The applicants initially filed only one Application, in which they stated they were both applicants, and which they both signed. For administrative purposes two files should have been opened for them, but through inadvertence only one file was opened. A file in which Grant Dobson is the applicant has since been opened and that file number is reflected on the cover page of this Interim Decision.

2In their identical Applications, the applicants allege that they were subject to various discriminatory and harassing actions on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. They also allege that Mr. Dobson was being “evicted” from the respondent co-op, an action which they state is reprisal contrary to the Code.

3The allegations in the Applications consist of a number of hand-written notes in response to a number of questions and a type-written attachment. On the basis of that material, a Notice of Intent to Dismiss (NOID) was issued on September 10, 2010 seeking submissions on whether the allegations were within the jurisdiction of the Tribunal to decide.

4An Interim Decision, 2010 HRTO 2240, was issued in which it was held that, on the basis of the submissions responding to the NOID, it was not plain and obvious that the matters were not within the jurisdiction of the Tribunal. On the same date, the Tribunal also issued the Case Assessment Direction directing that a summary hearing would be held under Rule 19A of the Tribunal’s Rules of Procedure.

5Rules 19A.1 and 19A.2 read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6The issue that Rule 19A requires me to determine is whether the Applications have no reasonable prospect of success. If a finding is made that the Applications have no reasonable prospect of success, then they are dismissed. In the absence of such a finding, the Applications continue to proceed through the Tribunal’s procedure.

7In Dabic v. Windsor Police Service, 2010 HRTO 1993, the Tribunal stated:

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.

8In the course of their oral submissions, and in response to my questions, the applicants explained that they believed the discriminatory treatment towards them (and Mr. Dobson, in particular) started after Ms. Keep disclosed Mr. Dobson’s medical condition to a fellow resident who was also the vice-president of the respondent’s board of directors.

9Specifically, they allege that the board of directors and administrator started treating Mr. Dobson as if he “had the plague.” They allege that Mr. Dobson’s probationary agreement was mysteriously lost, and a new one provided to him in November 2009, six months after he moved in, which delayed his acceptance into the respondent. They also allege that Mr. Dobson was wrongfully accused of writing comments on a notice from the respondent that had been posted on a common bulletin board. Finally, they allege that Mr. Dobson had been ejected from a meeting of the respondent despite the fact that other non-members were allowed to attend this meeting. The applicants state that they have documents and other witnesses to these events.

10The respondent denies these allegations. Counsel for the respondent suggests that they are contrary to logic because the respondent provides housing to numerous people with a variety of disabilities, and that some of the board members – including the president of the board – also have disabilities. Counsel also points to a number of documents, which he states demonstrate that Ms Keep voluntarily left the respondent.

11On the face of the documents, it would appear that Ms Keep agreed to leave the respondent as part of a negotiated settlement, arising from the fact that Mr. Dobson, with whom she lives, would not be allowed to be a resident of the respondent. Thus, it would appear that her departure is tied to the decision of the board of the respondent to terminate the probationary membership of Mr. Dobson.

12I do not accept the respondent’s argument that, as a matter of logic, persons with disabilities do not discriminate against other persons with disabilities. Such an argument presumes that persons who belong to a particular group automatically feel a loyalty to the other members of the group by virtue of their shared experience.

13Moreover, it presumes that the category of “disability” is more uniform than it, in fact, is. A person with a bad back may have less in common with someone with a significant mental illness than they do with someone who has no health complaints. The applicants allege that Mr. Dobson has a particular disorder that others apparently view as “contagious.”

14At this stage, it is not appropriate to make any findings with respect to the applicants’ allegations. I have heard no sworn testimony and the respondent has not even been given the chance to file a Response. It is sufficient to say at this point that the applicants have satisfied me that they may be able to make a link between the events alleged to have occurred and the grounds upon which they made the claim. I cannot find, therefore, that there is no reasonable prospect that their Applications will succeed.

15I do want to note, however, that the applicants were of the mistaken belief that their Applications could make allegations of discrimination against other members of the respondent co-op. They have not filed an application under s. 34(5) of the Code, and have not received the consent of the other individuals to do bring an application on their behalf. Such allegations are, thus, outside the jurisdiction of the Tribunal.

16The respondents will have 35 days from the date of this Interim Decision to file a Response.

17I am not seized of this matter.