Youssef v. Ontario (Community and Social Services), 2011 HRTO 582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Youssef

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Joanne McPhee

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: March 23, 2011

Citation: 2011 HRTO 582

Indexed as: Youssef v. Ontario (Community and Social Services)

Appearances

Pierre Youssef, Applicant | Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Joanne McPhee, Respondent | Cheryl Ellison, Counsel

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 in connection with goods, services and facilities. The applicant alleges that the respondents did not address his needs, as a person with Obsessive Compulsive Disorder, in the context of the Ontario Disability Support Program Employment Supports program ("ODSP Employment Supports" or "Employment Supports").

2On November 9, 2010, the respondents filed a Request for Summary Hearing – Rule 19A, because they asserted that the Application presented no evidence to support a prima facie case of discrimination against ODSP Employment Supports or Joanne McPhee and because the allegations of discrimination were untimely.

3By Case Assessment Direction ("CAD") dated January 11, 2011, the Tribunal directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure to address the following three issues:

(1) Whether the Application alleges any discrimination by ODSP Employment Services or Joanne McPhee or whether it relates only to the actions of Insight Enterprises, the service provider.

(2) Whether there is a reasonable possibility that the applicant can prove, on a balance of probabilities, that any decisions regarding job placements were affected by his disability.

(3) Whether the Application, or parts of the Application, fall outside the Tribunal's jurisdiction because of the time limit in s. 34 of the Code.

4The CAD also directed the parties to deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference. The Summary Hearing was held by teleconference on March 10, 2011.

Summary Hearings

5The 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.

6In 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.

Background Facts

7ODSP Employment Supports is a program under the Ontario Disability Support Program Act, R.O. 1997 c. 25, Sched B, administered by the Ministry of Community and Social Services. The goal of the program is to assist people with disabilities in securing and maintaining employment. The program operates on a "brokerage" model where funding is provided to third party service providers who are to place and retain Employment Supports clients in employment and help them with career advancement.

8Employment Supports staff determine whether applicants are eligible for the program, provide information and orientation sessions to applicants, assist clients in accessing appropriate services and monitor service quality.

9The applicant's association with the Employment Supports program began on May 31, 2007, when his eligibility for the program was confirmed. The applicant chose Insight Enterprises ("Insight") to provide placements support. As the service provider, Insight was responsible for assisting the applicant in his job search efforts. In June 2007, the applicant secured part-time employment as a kitchen helper at a restaurant. In November 2007, he secured full time employment at a gas station and continued working limited hours at his restaurant position. He worked at the gas station until he resigned on June 18, 2010. The applicant remains in the Employment Supports program and Insight continues to be his service provider.

10While the applicant appreciated being employed, his goal was to secure better paying and more prestigious work. From July 2007 onward he was in regular contact with Insight and with his Employment Support Specialist in the Employment Supports program to pressure them to find him new and better employment and to complain when they did not.

Submissions

11At the hearing, the applicant noted that despite 3½ years in the Employment Supports program he still did not have a good job and, in his view, the respondent had yet to develop a good plan to find him a job. Consequently, he concluded that the respondent must be discriminating against him. He noted that his OCD requires him to do things in a certain way and that these needs were not considered in designing his job search. For example, he explained that school "doesn't work" for him and made this clear, but Insight persisted in suggesting that he go back to school to improve his qualifications. The applicant believed that Insight was not conducting his job search properly. He felt that they should contact potential employers and explain that he has OCD and therefore has difficulty adjusting to new environments. He did not explain how he felt this tactic would improve his chances in securing employment. He explained that he felt anxious when applying for jobs and in interviews. He asked Insight to identify potential jobs and apply for him, but did not know whether they had done so.

12The applicant explained that he believed the respondents discriminated against him throughout his participation in the Employment Supports program, which continues to this day. Therefore, he filed the Application within the one year time limit set out in section 34 of the Code.

13The respondents noted that the applicant's complaint is directed at the service provided by Insight and makes no allegation against either ODSP Employment Supports or the individual respondent, Joanne McPhee, that is related to a prohibited ground of discrimination. The respondent was aware of only one allegation of discrimination involving the applicant, which occurred in October 2007 when he expressed the view that prospective employers were discriminating against him because of disability. To the extent the Application is based on that incident, it is both untimely and has no connection to the respondents.

14In reply, the applicant stated that he spoke with the individual respondent several times about Insight, but she would not direct Insight to conduct his job search as he asked. Similarly, he submitted that ODSP should have reviewed Insight's performance.

Analysis

15The central theme of the Application is that the respondents have not found him a job that he considers appropriate in the 3½ years he has participated in the Employment Supports program. He argues that the only explanation for this lack of progress is that the respondents are discriminating against him because of his OCD. Accordingly to the applicant, the evidence of a link to a prohibitied ground of discrimination is that Insight did not act on his request, that they advocate for him directly with potential employers regarding his OCD. The respondents are connected to this alleged discrimination because they did not direct Insight to comply with this request and did not supervise Insight adequately.

16The mere fact that he has participated in the Employment Supports program without, in his view, securing appropriate employment is not proof of discrimination. In any event, it is undisputed that Insight, not the respondents, was (and is) responsible for assisting the applicant in his job search. There is no evidence that would support an inference that Insight refused "to do things his way" in his job search because of his disability. Accordingly, there is no evidence that either of the respondent's discriminated against the applicant or were complicit in discrimination by Insight. I find that the Application has no reasonable prospect of establishing a link to a prohibited ground of discrimination and that, assuming the applicant's allegations to be true, cannot be reasonably considered to amount to a Code violation.

17For all these reasons, the Application is dismissed.