HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Grant Hutchinson
Applicant
-and-
Seneca College of Applied Arts and Technology
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Hutchinson v. Seneca College of Applied Arts and Technology
WRITTEN SUBMISSIONS
Grant Hutchinson, Applicant
Self-represented
Seneca College of Applied Arts and Technology, Respondent
Ann E. Burke, Counsel
Introduction
1This Interim Decision concerns a Request for Interim Remedy (“Interim Remedy Request”) in an Application filed on August 8, 2012 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). For the reasons that follow, the Interim Remedy Request is denied.
2This Interim Decision also deals with a Request for Summary Hearing which is granted. Directions are provided below.
OVERVIEW
3The Application alleges discrimination in services based on disability. It also alleges reprisal.
4The applicant was a student taking classes offered by the respondent (“Seneca”) on the campus of York University (“York”). The Application describes events which occurred on September 19, 2011 when the police are alleged to have entered the applicant’s room in the York residence where he lived, to have removed the applicant and to have brought him to a hospital. Seneca representatives subsequently met with, and communicated with the applicant about these events, claiming that they had no control over them given that the residence was York’s not Seneca’s. The Application appears to allege that the failure of Seneca to investigate the applicant’s complaints about the events was a failure to accommodate him.
5The applicant continued for months to communicate by email with the Dean of Students (“the Dean”). The Application alleges that the Dean “decided he didn’t like my language and used it as an opportunity to shut down my email.” The applicant claims that shutting down someone’s email for pointing out “a logical fallacy in a private example” was discriminatory.
6The Application states that York issued a Trespass Notice against the applicant on March 1, 2012 after “voicing [his] opinion on the school’s security…” This was obviously a problem for the applicant given that he needed to be on York’s property in order to attend Seneca classes. He contacted Seneca which arranged a meeting between the applicant and representatives from Seneca and York for the middle of March. As a result of that meeting, the Trespass Notice was lifted, but the applicant appears not to have entered York property until receiving written notice that it was lifted. He claims he missed mid-terms and class time as a result of waiting for the meeting and the written notice, and alleges that Seneca therefore discriminated against him.
7It appears from the Application that in May 2012 Seneca served a Notice on the applicant that he was not to trespass on Seneca property or that he was not to use its internal email system. It appears that the applicant believes that Seneca’s Notice was based on a discriminatory interpretation of the applicant’s communications with Seneca representatives, or at least with the Dean.
REQUEST FOR INTERIM REMEDY
8The applicant states in his reasons for his Interim Remedy Request that Seneca left him without an education, a career, tuition, housing and a financial allowance. He seeks: “immediate compensation for 3 semesters worth of tuition, housing and allowance… [his] education reinstated immediately, including the repair of [his] academic record and reputation.”
9The applicant claims that his Application has merit, and that there would be harm if an interim remedy were denied because his academic reputation and his career would be further damaged, there would be “enormous” financial costs, and there would be an effect on other students and on freedom of speech and justice. Basically, the applicant claims that an interim remedy is required so that his education and career is not delayed.
10In accordance with Rule 23.3, a request for interim remedy must include at least one declaration signed by someone with direct first-hand knowledge detailing all of the facts upon which the Applicant relies, but the very brief declaration attached to the Request for Interim Remedy is from the applicant’s father who describes what he discovered when he went to the hospital to meet his son on September 19, 2011, and who states that he attended “at least 2 meetings where Seneca and York were both represented. Both York and Seneca said they were willing to help Grant.” It is unclear how the applicant’s father has direct first-hand knowledge of any point in dispute between the parties.
11Seneca denies the allegations of discrimination, disputes the facts as set out by the applicant, and states that it had no role in the September 19, 2011 events which it claims seem to be at the centre of the allegations in the Application. It also claims that it had limited influence over York’s decision to issue a Trespass Notice against the applicant. However, having been told by the applicant about the disabilities he claims that he has, it tried to accommodate him, but the applicant sent harassing, abusive and demeaning emails that he has never claimed were as a result of his disability. Seneca claims that it does not allow anyone to send abusive and harassing messages using its internal email system. Seneca also claims that the applicant’s problematic academic record over many semesters was not as a result of York’s Trespass Notice, and his poor performance mandated that he withdraw for two semesters.
12Granting an interim remedy is an extraordinary step. It involves requiring the respondent to take certain actions prior to a hearing on the merits of the Application.
13The conditions for awarding an interim remedy are set out as follows in Rule 23.2:
The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
14In TA v. 60 Montclair, 2009 HRTO 369, at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”
15The Tribunal in TA v. Montclair, supra, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and that such a remedy is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.
16At this early stage of the proceeding, it is difficult for me to assess whether or not the Application has merit. However, even assuming that this first branch of the Rule 23.2 were met, I am not satisfied that the balance of harm or convenience favours granting the interim remedy. The applicant does not appear to have made any effort to mitigate his alleged losses by taking courses elsewhere, and the remedy sought related to monetary compensation and damages may be addressed if the applicant is successful in his Application after a hearing. In such a case, he could also argue that he is entitled to compensation or damages for the delay in his education and the loss of his academic reputation. In essence, the applicant has not made any arguments that if the Tribunal were not to grant his Interim Remedy Request, the remedies he ultimately seeks, if liability is established, would be unavailable at the end of a hearing.
17Furthermore, I am not satisfied that granting the interim remedy requested is just or appropriate in the circumstances, given that the school term has already commenced.
18The Interim Remedy Request is denied.
SUMMARY HEARING REQUEST GRANTED
19Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
20Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 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.
21The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground alleged (disability) and the actions of the respondent, or unable to prove that the respondent reprised against him given the definition of reprisal in the Code. The Request for Summary Hearing is therefore granted. Subject to the directions below, a summary hearing will be held to determine whether this 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.
NEXT STEPS
22This Interim Decision will be delivered to the applicant according to his contact directions in the Tribunal’s file, but it shall also be sent to the applicant c/o his father’s address, in light of the recent correspondence from the respondent about new contact information for the applicant.
23Within 21 days of this Interim Decision, the applicant is directed to confirm with the Tribunal his address for delivery. A failure to do so may result in his Application being dismissed as abandoned. If the applicant does confirm his address within 21 days, then the Tribunal will schedule a half-day summary hearing by teleconference, and a Notice of Summary 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 teleconference.
24The applicant will proceed first at the summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and explain how the allegations made in the Application could establish a violation of the Code. If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.
25The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests which are available through the Registrar and may be found on the Tribunal’s website at www.hrto.ca.
Dated at Toronto, this 23rd day of November, 2012.
‘signed by”
Mary Truemner
Vice-chair