Sheahan v. Ottawa Police Services Board, 2011 HRTO 420

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Sheahan

Applicant

-and-

Ottawa Police Services Board

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: February 28, 2011

Citation: 2011 HRTO 420

Indexed as: Sheahan v. Ottawa Police Services Board

APPEARANCES

James Sheahan, Applicant ) Did not Appear

Ottawa Police Services Board, Respondent ) David Patacairk, 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 respondent discriminated against him in employment on the basis of colour and disability, contrary to the Code, by failing to provide him with a “retirement badge” in the normal course and by not employing him in a position for which he applied.

2With respect to the ground of colour, the applicant self-identifies as a “white Canadian male born in Canada”. He also identifies his disability as suffering from Post-Traumatic Stress Disorder (“PTSD”) as a result of a workplace injury that was dealt with through the WSIB process.

3Following a review of the Application, and a request by the respondent that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure, a Case Assessment Direction (“CAD”) was issued on December 15, 2010, directing that a summary hearing be held by teleconference. The CAD directed the parties to serve on each other and file copies of further documents or cases on which they intend to rely 14 days in advance of the teleconference. The CAD also indicated that the applicant should be prepared to address the issues raised by the respondent in their Request for Summary Hearing.

4The respondent served and filed submissions and caselaw on which it intended to rely along with its Request for Summary Hearing (Form 26). The applicant submitted a two page letter on February 14, 2011.

5A Notice of Hearing by Conference Call, dated January 13, 2011, was sent to the parties setting the date of the hearing for March 4, 2011. In correspondence dated January 14, 2011, the applicant requested 30 days to consult with counsel. Attempts were made by the Tribunal to reschedule the conference call on dates the parties were both available. On February 1, 2011, a Notice of Rescheduled Hearing by Conference Call was sent to the parties indicating the hearing would take place on February 25, 2011.

6The conference call was held on February 25, 2011. The respondent was represented by counsel. The applicant did not attend the conference call. After allowing the applicant an additional 15 minutes to join the conference call, the summary hearing proceeded.

7There is no indication that the Notice of Hearing by Conference Call was returned as undeliverable or that the applicant did not receive it. I am satisfied that the applicant received timely and proper notice of the conference call.

8In the absence of the applicant and in the absence of any explanation for his failure to attend as required, I find that the Application is abandoned and it is dismissed on that basis.

9I have considered the materials filed by both parties and the submissions made by the respondent during the conference call, and I also dismiss the Application as there is no reasonable prospect that it will succeed for the reasons that follow.

ANALYSIS AND DECISION

10Rule 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.

11In 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.

12Although the applicant did not attend the conference call as directed, or provide oral submissions, I have reviewed the written materials filed by him. He makes two broad claims in his Application.

Retirement Badge

13The first claim is that he did not receive his “retirement badge”, a badge apparently given to retired police officers in the Ottawa force, in the normal course and in a timely way and had to write to the persons responsible for issuing the badge in order to get it. I see nothing in the Application or the materials filed that suggest a connection between the retirement badge issue and the applicant’s colour or disability. In my view, there is no reasonable prospect that he will succeed in establishing a breach of the Code in respect of this allegation.

Employment Opportunity

14The second claim made by the applicant is that he was not given a job in which he expressed an interest, specifically a part-time job as a background investigator in the process apparently used by the respondent to select new employees, because of his colour and disability. The basis for his argument regarding the first ground is as follows:

“Melva Henry, I know from the August 2009 meeting, is a black woman. I learned in conversation, early in 2010, that Sgt. Cartwright is a black man. I pondered this matter for months, since being told Cartwright is black.

Because of her colour and that of Cartwright, do they harbour some latent dislike for white people insisting on what they believe are their rights?”

His argument regarding the second ground is encapsulated in the following statement:

“If you never get a full explanation in writing, as to why you did not get the job, how can you possibly put the ‘Disability’ ‘PTSD’ to rest?”

15The respondent argues that there is no link between the identified grounds of discrimination and the alleged treatment. A letter communicating the reasons for the hiring decision is included in the body of the applicant’s own materials. The letter states that all applications received for the position were reviewed by a team. Based on that review and using a number of factors relating to the job tasks, determinations were made as which candidates would best meet that the respondent organization’s requirements. The allegations themselves, the respondent suggests, are bald statements of the applicant’s own beliefs with no additional facts that could support or potentially substantiate his claims.

16The respondent also argues that the applicant’s allegations regarding colour include offensive assumptions that because people share a common race or colour, they may be engaged in concerted attempts to discriminate against him because he is not of the same colour. These race-based assumptions, the respondent argues, cannot succeed and must be dismissed.

17Having reviewed the materials filed by the parties and hearing the respondent’s submissions, I find that the applicant’s allegations of discrimination are based on unsupported assumptions and speculation, and, as a result, the Application does not have a reasonable prospect of success.

18Accordingly, the Application is dismissed.