HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Vizcaya
Applicant
-and-
United Jewish Appeal Federation of Greater Toronto and Doron Horowitz
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Vizcaya v. United Jewish Appeal Federation of Greater Toronto
WRITTEN SUBMISSIONS
David Vizcaya, Applicant
Self-represented
UJA Federation of Greater Toronto and Doron Horowitz, Respondents
Daniel Chodos, Counsel
Introduction
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”), alleging discrimination with respect to services because of disability, and reprisal.
2The corporate respondent is a social service organization that, among other things, organizes and sponsors events in the community. The personal respondent is the Director of Community Security.
3The applicant alleges that the respondents have discriminated against him on the basis of disability by not allowing him to attend events sponsored by the corporate respondent.
4The Tribunal scheduled a hearing for June 13 and 14, 2012. In advance of the hearing, the parties each filed a number of Request for Order During Proceedings and other communications. The Tribunal issued a Case Assessment Direction dated April 10, 2012, which granted the respondent’s request for a summary hearing. The hearing scheduled for June 13 and 14 2012 was cancelled and the hearing on June 13 was converted to a summary hearing to be held by conference call.
5The applicant subsequently sent correspondence to the Tribunal in which, among other things, he asked that the summary hearing be cancelled or adjourned and that in the alternative it be conducted in writing rather than by telephone conference call. He indicated that he required more time to prepare for the hearing and referenced a “pending investigation against certain lawyers involved in this matter.”
6In a Case Assessment Direction dated May 18, 2012, the Tribunal denied the applicant’s request that the summary hearing be cancelled or adjourned, because he had not explained why he required more time to prepare his case and had not explained the relevance of the pending investigation to the issues in the summary hearing. His request that the hearing be conducted in writing was granted.
7The Case Assessment Direction concluded:
The applicant shall file his submissions on the issue of whether the Application should be dismissed in whole or in part on the grounds that there is no reasonable prospect that the Application or a part of the Application could succeed.
The applicant may also address any request to add or remove respondents, requests for further disclosure of documents and any other issues in relation to the Application. However, the applicant must explain how these matters relate to the question of whether the Application should be dismissed as having no reasonable prospect of success.
The applicant shall file these submissions with the Tribunal and the respondent by June 13, 2012. The respondent is not required to respond unless directed to do so by the Tribunal.
8The applicant sent a lengthy email on May 25, 2012. The email states that the applicant believes that there has been an “abuse of process.” The email indicates that the applicant is concerned because his requests for disclosure of documents have not been dealt with, but he did not make submissions on why the documents he seeks to have disclosed are relevant to the issues in the Application or to the summary hearing issues. The applicant further complains that he has been unable to determine if I am a lawyer although he does not explain how this is relevant. He asks that I recuse myself in essence because, in his view, I have demonstrated bias by not agreeing with his allegations about the respondents and their counsel. The email reiterates the applicant’s allegations about the respondents and his view that they and their counsel have lied, issued “anachronistic fabrications” and engaged in criminal behaviour, the nature of which is not specified.
9The applicant also forwarded a copy of a publication of the UJA Federation of Greater Toronto. The purpose of this appears to be to demonstrate that the Koffler Centre for the Arts is independent of the corporate respondent and to support his request that the Koffler Centre be added as an additional respondent.
10In an email dated June 6, 2012, the applicant indicated that he did not intend to file any additional submissions in respect of the summary hearing and that he would instead rely on his earlier submissions. In the June 6, 2012 email he quotes from a submission he made “in a pending investigation of several lawyers.” The relevance of the quoted submission to the issues in the summary hearing is not clear.
Background
11The Application arises out of events in 2010 when the respondents prevented the applicant from attending certain events. The applicant alleges that the events were public events and that he was not allowed to attend because of his disability, which he identifies as post-traumatic stress disorder. The respondents respond that one of the events was not a public event and that it was open only to people who were invited and the applicant was not invited. The respondents allege that the applicant was not allowed to attend other events because he created a disturbance at the events he tried to attend and also at previous events and that other patrons felt uncomfortable by his presence.
12The applicant does not dispute that he may have caused a disturbance on occasion at events organized by the corporate respondent but he suggests that this is because of the way he was treated. He appears to suggest that to the extent that he did cause an inappropriate disturbance, he did so because of his disability and that the respondent’s reaction was in reaction to his disability and so was discriminatory.
13The Application and subsequent submissions from the applicant also allege that he was discriminated against by the personal respondent and by other employees of the corporate respondent. In regard to the personal respondent, the applicant alleges that the personal respondent said that the applicant has a psychological disability that requires medication. He refers to an email from the Head of Programs of the Koffler Centre of the Arts dated May 28, 2010, which discusses an incident when the applicant was not permitted to attend a private function the day before. The email indicates, apparently in reference to another person who had caused difficulties in the past that “Thankfully the older man who takes pictures didn’t come – only one crazy for the night!”
14The applicant suggests that this email is a “smoking gun” that provides proof of discrimination on the basis of disability.
15I note that many of the submissions that the applicant has sent to the Tribunal since the time the Application was filed deal with his perception that the respondents and their counsel have responded inappropriately to his allegations and his view that the respondents have tried to mislead the Tribunal and others.
16The respondents state that the applicant was denied entry to an event held on August 24, 2010. The event was held at the Carlu facility and was sponsored by the organizational respondent. The respondents provide the following explanation:
The Applicant had on previous occasions conducted himself in a disruptive manner that interfered with UJA events and caused disruption to the program and participants’ enjoyment of events. Event staff were, at times, concerned for their own safety given the harassment experienced by them from the Applicant. UJA staff decided that the Applicant, based on previous incidents in which the Applicant acted in a harassing and disruptive manner, would not be permitted to attend future events. The Applicant was advised by the UJA Director of Community Security, Doron Horowitz [the personal respondent], following the August 24, 2010 event that he would not be permitted to attend future events.
17The respondents provide no details about what may have occurred on the previous events or what specifically it was that caused UJA staff to have concerns.
Analysis and conclusions
Recusal request
18I will deal first with the applicant’s request that I recuse myself because of bias.
19The test for determining whether a reasonable apprehension of bias exists is high was set out by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. In that case, De Grandpré J. said:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
20The basis for the applicant’s allegation of bias appears to be that I directed that a summary hearing be held and have not accepted his allegations as fact. In my view, this does not establish a reasonable apprehension of bias and the applicant’s request that I recuse myself is denied. The Tribunal’s Rules provide the basis for the summary hearing process. The fact that the Tribunal directs that a summary hearing be held does not mean that the Tribunal has accepted the respondent’s information about what happened as true.
Should the Application be dismissed as having no reasonable prospect of success?
21The Tribunal’s authority to hold a summary hearing to determine if there is no reasonable prospect that the an Application could succeed is found in Rule 19A of the Tribunal’s Rules of Procedure which reads in part:
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.
22Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9.
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.
23A finding following a summary hearing that the Application should not be dismissed as having no reasonable prospect of success is not the same as a finding that the Application is likely to succeed. It only means that if the applicant’s allegations are true there could be a finding that the applicant’s Code-protected rights were infringed and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that the applicant may be able to prove that his allegations are true.
24In cases where there are competing accounts of what actually happened it may not be possible to determine whether there is no reasonable prospect that the Application could succeed without hearing evidence. In those cases it may not be possible to determine if there is no reasonable prospect that the Application could succeed based on the summary hearing process. As the Tribunal discussed in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, this does not necessarily mean that the next step is a full hearing. The Code and the Tribunal’s Rules of Procedure give the Tribunal broad powers to structure hearings to ensure fair, just and expeditious adjudication of Applications.
25In this case, the applicant alleges that the respondents denied him access to an event on August 24, 2010 and from all future events because he has a disability. He appears to concede that there may have been a disturbance on August 24, 2010 and also at earlier events, but alleges that the reason he was not allowed access to the event was because he is disabled or because he was presumed to be disabled. The email to which the applicant points appears to show some evidentiary basis that takes this claim out of the realm of mere speculation. The applicant also says that he did not cause a disturbance that would justify his being denied access to events.
26If the applicant’s allegations and the inferences he attempts to draw from the email are true, they could form the basis for a finding that the applicant’s Code-protected were infringed because he was denied access to an event and to future events because of disability or presumed disability. On the other hand, if the respondents’ allegations about the applicant’s behaviour are true, there may be a complete non-discriminatory reason for the respondent’s actions.
27In my view, in light of the nature of the allegations and facts in this case, the question of whether there is no reasonable prospect that the Application can succeed cannot be determined without hearing some evidence about what actually occurred.
28The Tribunal will schedule a half-day, in person hearing. At the hearing the Tribunal will hear evidence from the applicant about what he alleges occurred on August 24, 2010 and at earlier events. The Tribunal will also hear evidence from the respondents about what occurred on August 24, 2010 and at earlier events that caused the respondent to bar the applicant from events.
29After hearing this evidence, the Tribunal will make further directions about how the Application will be dealt with. This may include a finding of whether, based on the evidence at the hearing, the Application has no reasonable prospect of success. It may also include directions about the various issues raised by the parties to date including requests for disclosure of documents and to add or remove respondents and any other such issues that may arise prior to the hearing.
30To be clear, at the hearing, I expect to hear evidence from the applicant and the respondents about what occurred on August 24, 2010 and at any other relevant earlier events. I do not expect to hear evidence from the parties about what they allege about the conduct of the other party in respect of the processing of this Application. However, it is appropriate to remind the applicant again that he must respect the Tribunal’s process and Rules. He must be courteous to the Tribunal and the respondents in all communications.
Order
31The Tribunal shall schedule a half-day in person hearing to hear evidence from the applicant and the respondents about what occurred on August 24, 2010 and at earlier relevant events.
32A Notice of Hearing will follow from the Registrar’s Office. The parties shall 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 hearing.
Dated at Toronto, this 9th day of July, 2012.
Signed by
Brian Cook
Vice-chair