Sweet v. Baycrest Centre for Geriatric Care, 2012 HRTO 1118

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Percy Sweet Applicant

-and-

Baycrest Centre for Geriatric Care Respondents

DECISION

Adjudicator: Maureen Doyle Date: June 6, 2012 Citation: 2012 HRTO 1118 Indexed as: Sweet v. Baycrest Centre for Geriatric Care

APPEARANCES

Samuel Percy Sweet, Applicant (Self-represented) Baycrest Centre for Geriatric Care, Respondent (David Chondon, Counsel)

1This is an Application filed on December 16, 2011 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 employment on the basis of age.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on February 7, 2012, directing that a Summary Hearing take place. The Summary Hearing was held by telephone conference call on May 4, 2012.

DECISION

3For the reasons that follow I find that this matter has no reasonable chance of success.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue 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 a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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. 8 and 9, 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.

Application to the Facts

6In his Application, the applicant alleges that he had been working as a volunteer, providing services as a denturist at the respondent’s premises since 1999. He states that his professional background is as a Registered Denturist. He states that he makes prosthetic dental appliances for patients of the clinic at the respondent. He alleged that on November 14, 2011, when he reported for work, he was directed to see Dr. Marc Goldstein, who told him that a new health act had been passed and he was no longer allowed to work with patients as a volunteer. He alleged that he then left the respondent’s premises and contacted the Director of Volunteers. He alleged that he met with her on November 18, 2011 and she also told him that he was no longer permitted to volunteer in his professional capacity. He alleged that he told her that he has insurance coverage for medical malpractice and that there has never been a complaint regarding his work. He alleged that to the contrary, the respondent has received multiple letters of praise regarding his work.

7At the summary hearing in this matter, he alleged that when he met with the Director of Volunteers, she told him on November 21, 2011 that he may not be able to function as a denturist at the respondent and that there may be an issue with the respondent’s insurers. He alleged that she advised that she would communicate with their legal representative and would keep in touch with him. He alleged that she has not contacted him since that time, either regarding his role at the respondent or any other role or regarding the rationale for terminating his role as a volunteer denturist, or with any documentation regarding this matter. He stated that documents provided by the respondent indicate that by November 21, 2011, the Director of Volunteers had already met with Dr. Goldstein and that they had discussed whether having the applicant continue to work as a denturist might not be compliant with privacy legislation. He submitted that this was inconsistent with what she had told him in her discussion with him on November 21, 2011.

8The applicant submitted that he had volunteered in a professional capacity at the respondent for 14 years and that in that time, the respondent had made a significant amount of money due to his volunteer work there. He stated that he maintains his registration with the College of Denturists of Ontario and that he serves on their Quality Assurance Committee as a consultant. He submitted that he has never had any complaints about his work and that the respondent has received many letters complimenting his work.

9The applicant submitted that he is 88 years old and that he can only conclude that the respondent discriminated against him on the basis of his age.

10He submitted that he has never felt so humiliated in his life as he felt due to the way in which he was let go from his volunteer role at the respondent.

11At the summary hearing, the respondent’s counsel began by confirming that the applicant has an admirable volunteer record of valuable service over many years in the respondent’s dental clinic.

12Counsel submitted, however, that the applicant has put forward no facts linking the termination of his volunteer clinical services to his age, and that his speculation that it was for age-related grounds is not sufficient to establish a claim of discrimination.

13With regard to the allegations themselves, counsel submitted that initially, there were some concerns regarding privacy issues pursuant to provincial legislation governing the health care sector, as the applicant was working in a clinical role while volunteering. He submitted that this had become a concern, as in the records at the volunteer office, the applicant was recognized as volunteering in an administrative, rather than clinical role. Further, he indicated that in examining the scope of clinical services provided by the applicant, the additional issues of insurance coverage and conflict of interest were raised. He emphasized that the respondent was not disputing the applicant’s capability to provide services, nor was it indicating that he had done anything wrong, but stated that in accordance with its obligations, the respondent had to address the issues of privacy, insurance and possible conflict of interest. He also submitted that in accordance with the applicant’s excellent record of volunteer service, the respondent had invited him to consider volunteering in a different capacity, especially while the respondent’s concerns were being addressed, but that the applicant had expressed no interest in doing so.

14While Counsel allowed that the respondent’s communication with the applicant regarding these issues was “less than ideal”, he denied that there had been any discrimination contrary to the Code.

15The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all disputes between parties.

16The Case Assessment Direction issued in this matter indicated that the question at the summary hearing is whether the Application should be dismissed on the basis that there is no reasonable prospect it will succeed. Further, the applicant was directed to point to the evidence on which he would rely to prove a link between the applicant’s actions and the grounds cited.

17The applicant has submitted that as the respondent was not forthcoming with its reason for dismissing him from his volunteer clinical role, he “can only think” that his dismissal was due to discrimination on the basis of age.

18While it is true that a “smoking gun” is not required to establish discrimination, there must be some evidence which demonstrates a link with a ground under the Code. In Preddie v. St. Elizabeth Health Care 2011 HRTO 2098 at paragraph 25, the Tribunal stated:

I accept the argument of applicant’s counsel that discrimination based on race and colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to the hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground. I cannot find, based on the Application and the submissions of the applicant and her counsel, that there is a reasonable prospect that the applicant can prove that she was discriminated against by the respondents based on her race and colour.

19The applicant has indicated that the respondent was not forthcoming with information regarding its concerns regarding his role as a volunteer performing clinical services, but has not been able to point to evidence upon which he would rely to prove a link between the respondent’s actions and his age. The applicant must be able to show that the respondent has treated him differently as compared to others based on his age for his Application to be successful. Without such a link, his Application cannot succeed.

20The respondent itself has conceded that its communication with the applicant was “less than ideal”, and it appears that this poor communication has resulted in the applicant’s conclusion that he was discriminated against, leading to this Application. In view of the fact that, as the respondent has confirmed, he has provided such valuable service over many years, it is understandable that the applicant’s feelings have been hurt by the events which gave rise to this Application. It can only be hoped that these events will not detract from the pride the applicant must rightly feel in such a stellar record of volunteer service.

21I find, however, that there is no reasonable prospect that the Application will succeed and it is dismissed.