Mubili v. Ontario (Attorney General), 2011 HRTO 91

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Viktor Mubili

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Debbie Gibbins and Moreen Jakubczyk

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 12, 2011

Citation: 2011 HRTO 91

Indexed as: Mubili v. Ontario (Attorney General)

APPEARANCES

Viktor Mubili, Applicant ) Self-represented

Ontario (Attorney General), )

Debbie Gibbins and ) Baaba Forson, Counsel

Moreen Jakubczyk, Respondents )

1A summary hearing was held to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it would succeed. The Application was served on the respondents at the same time as the Case Assessment Direction notifying the parties of the summary hearing. The respondents were advised that it was not necessary to file a Response at that time.

2This Application arises from family law litigation in Milton. The applicant alleges that various actions of court staff relating to the filing of documents discriminated against him on the basis of race and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He also alleges reprisals contrary to the Code.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure 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.

4The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

5In 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.

6In advance of the hearing, the applicant prepared an affidavit and attached a number of documents on which he states he would be relying if this matter proceeded to a hearing. He also supplied further documents in advance of the hearing. During the course of the summary hearing, the applicant carefully went through the documents to explain his theory of the case, as directed by the Tribunal in the Case Assessment Direction.

7The applicant, in the course of his oral submissions and in response to my questions, provided further particulars which did not form part of his Application. For example, he stated that his initial encounter with one of the individual respondents, which pre-dated the events in the Application, led him to believe that his subsequent encounters were based on his race and sex. He stated that he did not include them because he had been advised that he could only include those allegations that occurred in the year prior to the filing of the Application. He was not aware of the provisions of s. 34 (1) (b) of the Code, dealing with a series of incidents.

8At this stage, it is not appropriate to make any findings with respect to the applicant’s allegations. I heard no sworn testimony, and the respondents have not yet been provided with the opportunity to submit a formal Response to the Application. It is sufficient to say at this point that the applicant has satisfied me that he may be able to establish a link between the events alleged to have occurred and the grounds upon which he made the claim. Therefore, I cannot find that there is no reasonable prospect that his Application will succeed. The Application is not dismissed and will continue in the Tribunal process.

9Given the new factual particulars provided during the conference call hearing by the applicant, the Tribunal directs the applicant’s attention to Rules 1.7(c) and 17 of the Tribunal’s Rules of Procedure. The applicant should take steps to ensure that the factual allegations upon which he would rely at a hearing are set out in the Application. The applicant has 14 days from the date of this Interim Decision to file an amended Application.

10Following receipt of the amended Application, the Tribunal will deliver a Notice of Application to the respondents, which will specify a Response deadline.

11I am not seized of this matter.