HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bradley Bondar
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Northern Development and Mines
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Bondar v. Ontario (Northern Development and Mines)
APPEARANCES
Bradley Bondar, Applicant ) Aaron Mintz, Articling Student
Ontario (Northern Development and Mines), Respondent ) Daniel Huffaker, Counsel
INTRODUCTION
1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against him with respect to services because of disability. The Application describes the respondent’s announced intention to discontinue passenger train service in Northern Ontario and states that the applicant, who uses a wheelchair, has experienced discrimination as a result of the announcement.
2Pursuant to a Case Assessment Direction dated July 9, 2012, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that the Application would succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success. The respondent filed submissions and a Book of Authorities in support of its position that the Application had no reasonable prospect of success. It was not required to file a Response to the Application.
SUMMARY HEARING
3The applicant made submissions at the Summary Hearing through his newly retained representative. The representative stated that the passenger train service has now been discontinued, and that the applicant must travel by bus to Southern Ontario for his appointments with medical specialists. The representative explained that the bus does not accommodate the applicant’s needs arising from his disabilities as well as the train service did. While he can reserve a “courtesy seat” for travel, he must endure the 11-hour trip to Toronto without being able to navigate the aisle to the inaccessible toilet at the back of the bus. This hardship not only is a physical hardship, but also affects the applicant’s dignity.
4The respondent’s counsel argued that the applicant’s representative’s submissions at the Summary Hearing altered the allegations in the Application which focused on the cancellation of the passenger train service as discriminatory, not the inaccessibility of the buses. The applicant’s representative stated that the applicant is no longer pursuing that part of his Application that alleged that the announcement to eliminate passenger trains in Northern Ontario was discriminatory, and he agreed to amend the Application to make it clear that the alleged inaccessibility of the buses was the allegation that the applicant wishes to pursue. I offered to stand the Summary Hearing down for one hour to allow the respondent’s counsel to formulate his response.
5Upon resuming the Summary Hearing, I took the respondent’s counsel’s submissions. He argued that the issue to be decided by the Summary Hearing was whether the Application, as originally drafted, could proceed, or whether it should be dismissed for no reasonable prospect of success. Therefore, he argued, I should not consider the clarifications provided by the applicant’s counsel, and I should dismiss the Application as having no reasonable prospect of success.
6I pointed out that the Tribunal will often permit clarifications of the allegations contained in the original Application at Summary Hearings, particularly when the original Application was drafted by an unrepresented applicant, as in this case. I informed the parties that I would reserve my decision of whether to allow the applicant to amend his Application and issue a decision shortly.
DECISION ON REASONABLE PROSPECT OF SUCCESS
7While I agree that the applicant’s submissions at the summary hearing altered the focus of the Application, I do not agree that the original Application entirely omits the issue that the buses are inaccessible to the applicant. In his narrative about what happened that the applicant believes is discriminatory, the applicant included the following paragraph:
I suffer from Spinal Bifida and Hydrocephalus which has restricted me to a wheelchair for life. I often travel to Toronto and other communities to see a specialist for my condition. On a train I am able to at least stretch out on the bench seats from time to time to relieve the pain in my back. I can also access the washroom facilities with greater stability (and dignity). I cannot do this on a bus.
8I find that the original Application does include the allegation of the inaccessibility of the buses that the applicant is required to use now that passenger train service has been cancelled.
9Given the applicant’s submissions at the summary hearing that he is no longer pursuing his allegation that the announcement to eliminate passenger train service to all persons is discriminatory, I grant his request to withdraw that part of the Application.
10Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
11Details about the nature of a summary hearing were set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, at para.