Gary Chatsick v. Ontario (Public Safety and Correctional Services), 2012 HRTO 1524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Chatsick

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Public Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 3, 2012

Citation: 2012 HRTO 1524

Indexed as: Chatsick v. Ontario (Public Safety and Correctional Services)

APPEARANCES

Gary Chatsick, Applicant

Self-represented

Ministry of Public Safety and Correctional Services, Respondent

Donna Petri, 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”).

2The applicant was incarcerated in May 2011. His mother passed away while he was incarcerated. The applicant alleges that his request for a pass under the respondent’s Temporary Absence Program to allow him to attend the funeral service was denied for discriminatory reasons. Specifically the applicant alleges that the temporary absence pass was denied because of his racial origin although in the Application he indicated that the grounds of alleged discrimination were disability and creed.

3The Application was delivered to the respondent which filed a Response. The Response indicated that the respondent has no record that the applicant ever asked for a temporary absence pass. The respondent further submitted that granting a temporary absence pass is discretionary and that the grant of a temporary absence pass is a privilege and not a right.

4After reviewing the Application and Response, the Tribunal on its own initiative directed that a summary hearing would be heard pursuant to Rule 19A of the Tribunal’s Rules of Procedure, which allow the Tribunal to dismiss an Application in whole or in part if there is no reasonable prospect that the Application or a part of the Application will succeed.

5The summary hearing was scheduled as a telephone conference call hearing which was held on June 8, 2012. The applicant and respondent participated.

The summary hearing process

6The earlier Case Assessment Direction explained the summary hearing process In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal discussed the process and the issues to be decided in a summary hearing in the following terms:

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.

7If the Tribunal allows an Application to proceed following a summary hearing it does not mean that the Application will eventually succeed. It only means that the applicant has made allegations that, if true, could establish an infringement of the applicant’s Code-protected rights and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that the applicant will be able to establish that the alleged events did occur.

8Rule 19A provides that the Tribunal need not give reasons if it decides not to dismiss an Application following a summary hearing.

Submissions at the summary hearing

9At the summary hearing the applicant stated that he made a verbal request for a temporary absence pass on a daily basis during the week of May 19, 2011. He said that he completed the paperwork to request a pass on at least one occasion. He was told that his application for a pass had been received and was being reviewed but nothing happened.

10The applicant indicated that he identifies as a Native person and that remarks were made to him that reflected on his Native status during his incarceration and in particular in reference to his requests for a temporary absence pass.

11The applicant stated that he was in contact with the Native Liaison Office in the jail and that they were aware of the difficulties he experienced in trying to get the pass and also aware of how he was affected when his requests were ignored. He indicated that he believes he will be able to provide evidence to support his allegation that requests for a pass were ignored because he is a Native person.

12Counsel for the respondent reiterated the respondent’s position that there is no record of any request from the applicant for a temporary absence pass, either in respect of a verbal request or a written request. The respondent submits there is therefore no evidence to suggest that the applicant’s requests were ignored, because there is no evidence the requests were made.

Conclusions

13In the original Application, the applicant alleged discrimination on the grounds of creed and disability. The Application did not explain how the alleged failure to consider his request for a temporary absence pass was related to either his creed or a disability.

14At the summary hearing, the applicant clarified that he believes that the failure to consider his request was related to the fact that he is a Native person. If the applicant made requests that were ignored because he is a Native person, this could establish discrimination contrary to the Code.

15The issue of whether the applicant made requests, as he alleges, or whether he did not make any request as the respondent alleges, is an issue that can only be decided on the basis of evidence and a determination of credibility. This is not an issue that can be determined on the basis of the written documents that the parties have so far filed or the submissions at the summary hearing.

16For these reasons, the Application is not dismissed at this time. As both parties have not agreed to mediation, the Tribunal will schedule a one-day in person hearing to hear the evidence and submissions of the parties.