Zvonimir Basic v. Felix Sabayle, 2011 HRTO 802

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic

Applicant

-and-

Felix Sabayle

Respondent

Decision

Adjudicator: David A. Wright

Date: April 21, 2011

Citation: 2011 HRTO 802

Indexed as: Basic v. Felix Sabayle

APPEARANCES

Zvonimir Basic, Applicant ) Self-represented

Felix Sabayle, Respondent ) No one appearing

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, filed on August 9, 2010. The applicant alleges discrimination in services because of disability.

2The narrative in the Application reads as follows:

On or around September 28, 2009 The Applicant Zvonimir Basic "Basic· Did Busness Dealingings with Felix Sabayle on the Buy of a New Mobility Scooter to be clear Mr. Sabayle works for a Medical Supplies Store in Toronto, Between September 28,2009 until Roughly March 2010 Basic had nothing but problems with Mr. Sabayle in regards to ordering parts and "Add on's" for Basic Scooter, Mr. Sabayle kept delaying add on parts for example Basic waited over 2 Months for a front foam filled tire were it got 10 the point were Basic gal the part from another Dealer My case is quite basic and clear Mr. Sabayle took advantange of Basic's Disability and made Basic feel loss of dignaty, Hurt Feelings *Also BE ADVISED THERE WAS A SMALL CLAIMS MATTER NAMEING Mr. Sabayle Company on a diferent basis and to be clear has nothing to do with this complaint as the case was against the company and the company is NOT Named in this complaint the only person named is Felix Sabayle privitely. At this time those are the respectful Submissions of this writer Thank You.

3When asked in the Tribunal’s supplemental form why he believes he was discriminated against, the applicant states: “I feel that Mr. Sabayle took advantage of me because of my physical and mental disability”.

4By Case Assessment Direction dated December 16, 2010, the Tribunal directed, on its own initiative, that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure, to determine whether the Application should be dismissed on the basis that it had no reasonable prospect of success. The respondent was not required to file a response or any materials.

5The respondent did not attend on the conference call. The Tribunal’s letter to the respondent was returned as “moved” and it appears from the applicant’s submissions that the store has closed. The applicant said that as the respondent did not appear on the call, his claim for $6,000 should be “granted forthwith”. This submission has no merit. First, the respondent did not have notice of the call, since the applicant did not provide the Tribunal with a current address for the respondent. Second, the respondent was not required to send any materials or take any steps, since there was a serious doubt about whether the Application had a reasonable prospect of success.

6I turn now to the merits of the question of whether the Application has no reasonable prospect of success. The approach taken on a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994:

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.

7The applicant alleges that a link is established between his claim and disability by two e-mails that were submitted in the Small Claims Court action. One was from the respondent to a manufacturer and allegedly states: “Hi Frank, I hate to bother you with this name, Zev Basic”. The other from the manufacturer allegedly states: “Felix, I have experienced difficulties in the past with Mr. Basic both in Ontario and BC”. Other than his problems with his scooter, the applicant makes no reference to anything else that may connect his disability with the repair issues.

8I find that there is no reasonable prospect that the applicant can prove discrimination on the basis of disability. In this context, the e-mails to which he refers point clearly to a personal disagreement rather than discrimination on the basis of disability. The applicant has failed to show a reasonable prospect that he could meet his burden of proof to show that the respondent’s actions were connected with his disability. Accordingly, the Application must be dismissed.

9I add one further note. The applicant states that the same issues were the subject of a Small Claims Court action which was settled. The fact that the individual respondent was not named in that action nor was a party to the settlement does not mean that this Application could have proceeded. Had the Tribunal not found that the Application had no reasonable prospect of success on the facts, it would have had to consider whether, in light of the settlement, it would be an abuse of process to proceed with the Application.

10The Application is dismissed.