Comrie v. Scouts Canada, 2012 HRTO 1834

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rubie Ann Comrie Applicant

-and-

Scouts Canada, Robert Stewart, Elizabeth Peeters, Janet Yale, Barry Hardaker, Gord Varey and Jim Walter Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: September 26, 2012 Citation: 2012 HRTO 1834 Indexed as: Comrie v. Scouts Canada

APPEARANCES

Rubie Ann Comrie, Applicant Self-represented

Scouts Canada, Robert Stewart, Elizabeth Peeters, Janet Yale, Barry Hardaker, Gord Varey and Jim Walter, Respondents Denyse Boulet, 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 employment because of disability, sexual orientation, family status or marital status.

2By Case Assessment Direction (“CAD”) dated March 26, 2012, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

3The Summary Hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a Summary Hearing 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 part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

6In the CAD the applicant was also advised that the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention.

ANALYSIS

7The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether her Application should proceed.

8The applicant self-identifies as a disabled person and the sole-support mother of her ten year-old daughter. She enrolled her daughter into the First Omemee Cub pack and then applied to be a volunteer Cub Leader. The applicant alleges that she was refused that opportunity because of discrimination.

9The applicant alleges that because of her disability and limited income she was required to seek assistance from the organizational respondent for the costs associated with her daughter’s participation in the Cub pack. She alleges that during that process she was mistreated by a woman who demonstrated significant and unexplainable animosity toward her which the applicant attributes to discrimination. The same person denied her application to be a Cub leader. The reason for the denial is that following her interview, a conclusion was made that the applicant did not “fit into our leadership model”. She also alleges that she raised allegations of discrimination with the organizational respondent and senior members of the organization and that her concerns were not properly investigated.

10The applicant is unable to point to any direct connection between the prohibited grounds she has relied on and the alleged actions of the respondents. She is seeking to establish that connection by way of circumstantial evidence. In her Application she makes the following allegations, which, if believed, could arguably substantiate a claim of discrimination: the person who allegedly mistreated her was aware of her status as a disabled single-mother who required financial assistance; the organizational respondent was actively looking for Cub leaders; the applicant was experienced and had the qualifications to be a good leader; the explanation that she was not a “good fit” is pre-textual and her allegations of discrimination were not properly investigated. The applicant attached to her Application a number of letters of recommendation and also indicated that since having enrolled her daughter in another Cub pack she has become a Cub leader.

11Having reviewed the materials and considered the oral submissions of the applicant which make the basis for the Application somewhat more clear, I have concluded that this matter should move forward to a full hearing where the presiding adjudicator can dispose of the Application on a final basis. Virtually all of the information associated with the reason for denying the applicant the opportunity to become a volunteer Cub leader is in the possession of the respondent. That combined with the evidence the applicant does have available to her leads me to the conclusion that it is premature to dismiss this Application for no reasonable prospect of success.

12This is not a final decision and there may come a point in the adjudication of this matter where the respondent, or the Tribunal on its own initiative, will wish to revisit this question.

13Pursuant to Rule 19A.6, I do not consider it necessary to provide further reasons for this Decision. I cannot determine that the Application has no reasonable prospect of success. Accordingly, the Application will move on to the next stage in the hearing process.

14The respondents will file a response in accordance with the Rules within 35 days of the date of this Interim Decision. The applicant will file a reply, if necessary, in accordance with the Rules.

15The parties will indicate to the Registrar whether or not they are interested in participating in mediation within 10 days of this Interim Decision.

16I am not seized.