Bujalski v. Toronto Transit Commission, 2011 HRTO 367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walter Bujalski Applicant

-and-

Toronto Transit Commission and Gary Webster Respondents

DECISION

Adjudicator: Jay Sengupta Date: February 18, 2011 Citation: 2011 HRTO 367 Indexed as: Bujalski v. Toronto Transit Commission

APPEARANCES:

Walter Bujalski, Applicant ) On His Own Behalf Toronto Transit Commission and Gary Webster, Respondents ) Marni Tolensky, Counsel

1This is 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”). The applicant alleges that the respondents discriminated against him in receipt of services on the basis of age and disability contrary to the Code by taking insufficient steps to ensure that individuals are not pushed off subway platforms.

2Following a review of the Application, a Case Assessment Direction was issued directing that a summary hearing be held by teleconference. The CAD indicated that the applicant should be prepared to address several questions, specifically whether the Code governs the safety standards of service providers, whether his Application relates to the purpose of the Code in preventing stereotyping, discrimination and inequality and how he intends to prove, on a balance of probabilities, that any violation of safety standards is discriminatory on the basis of disability or age. The CAD went on to note that the Code does not address general unfairness or how public services are managed, but rather discrimination on prohibited grounds.

3The conference call was held on January 18, 2011. The respondents had served and filed documents and caselaw on which they intended to rely, in accordance with the direction in the CAD. Although the applicant had not served or filed documents 7 days in advance, he was permitted to submit those documents electronically to the respondents and file them with the Tribunal during a brief adjournment and the conference call resumed once the documents had been received by those participating in the proceeding.

ANALYSIS AND DECISION

4Rule 19A.1 reads 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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

6Although directed to address a number of issues in the CAD and during the course of the conference call, the applicant essentially reiterated the points previously made in his Application documents and in the written material submitted on the date of the conference call.

7He alleges that there is no protection for subway patrons, that there are too many tragic accidents, that his disability and limited income force him to use the subway, that he could collapse without warning while using the subway and then become just another statistic. He says that he has offered the respondent Toronto Transit Commission (the “TTC”) a reasonably priced solution, an electronic bar that costs as much as a garage door, but that they have ignored this solution.

8The respondents argue that this Application should be dismissed as an abuse of process and have provided me with some documents to show that the applicant has been attempting to sell his invention, a device he calls “The Electronic Bar” or “TEB” to the TTC since 1998.

9The respondents suggest that there is ample evidence that the applicant wishes to bypass the usual fair bidding process used by a public agency such as the TTC and is using this Application to further his interest in profiting by selling his invention to the TTC. They point out that since 1998, he has been directed to the proposals and procurement department of the TTC as the appropriate venue for the applicant to utilize.

10They argue that no Code issues are engaged by this Application. There is no suggestion that the applicant has received differential treatment or that there has been a refusal of access to services.

11The applicant has not established a link between the alleged discriminatory treatment, specifically his suggestion that the TTC has not done enough to prevent subway fatalities, and the grounds he has raised in his pleadings. He has not explained how the manner in which the respondents manage the safety features of the subway system results in his being treated differently or experiencing disadvantage; nor has he explained how he is unable to access the services offered as a result of his age or disability.

12His suggestion that his age or disability may cause him to collapse and have a fatal accident is speculative. As the Tribunal stated in Shuparski v. Toronto (City), 2010 HRTO 726, “the Code is not designed to protect against hypothetical or even anticipated violations. It is retrospective and remedial in nature.”

13For the reasons stated, I find that the Application does not have a reasonable prospect of success. Accordingly, the Application is dismissed.