HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edgar Cowie Applicant
-and-
General Insurance Ombudservice, Brian Maltman, and Caroline Smith Respondent
DECISION
Adjudicator: Leslie Reaume Date: March 2, 2012 Citation: 2012 HRTO 381 Indexed as: Cowie v. General Insurance Ombudservice
APPEARANCES BY TELECONFERENCE
General Insurance Ombudservice, Brian Maltman, and Carol Smith, Respondents: Jacinthe Boudreau, Representative
INTRODUCTION
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination on the basis of race, colour, ancestry, place of origin, citizenship, and ethnic origin.
2The Tribunal directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure. The applicant was directed to make argument and point to evidence which would support a connection between the alleged actions of the respondent and the prohibited grounds alleged in his Application.
ANALYSIS
Summary Hearings
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 made the following observations on the type of inquiry that may be involved in a summary hearing:
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.
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. For an Application to continue in the Tribunal's process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one's Code rights.
Application to the Facts
6The applicant did not appear on the teleconference which was scheduled to commence at 1:30 on February 21, 2012. The Tribunal delayed the commencement of the hearing for 15 minutes and then proceeded to hear submissions from the respondent. The applicant wrote to the Tribunal in advance of the summary hearing date and indicated that he would not attend the call without representation by counsel. That request was dealt with by way of a Case Assessment Direction dated February 14, 2012, the text of which is set out below.
[1] The summary hearing in this matter was re-scheduled from September 26, 2011 to February 21, 2012. In advance of setting that date the Tribunal canvassed the parties for their availability. The applicant did not respond to the Tribunal's request for dates.
[2] On January 23, 2012 the applicant sent correspondence to the Tribunal indicating that he cannot attend the hearing on February 21, 2012 or on any future date until he secures legal representation. The applicant is of the view that the Human Rights Legal Support Centre and the respondents should provide him with legal representation and he appears to be asking the Tribunal to facilitate this request.
[3] The applicant has made a number of similar requests in the past. The applicant has sought assistance from the Tribunal and has been advised that the Tribunal does not play a role in the provision of legal services.
[4] The Tribunal is unable to accommodate the applicant's position which is essentially to continue to adjourn his matter until he secures legal representation.
[5] The request for adjournment is denied. The summary hearing will proceed as scheduled.
7At the time of the hearing I was satisfied that the applicant had notice that the summary hearing would proceed and chose not to attend. Shortly after the hearing, the Tribunal received notice that the CAD had not been delivered to the applicant despite the fact that the Tribunal relied upon the applicant's last known address, the same address at which he received the Notice of Summary Hearing. In any event, given the applicant's history of refusing to participate in this matter, his receipt of the Notice of Summary Hearing which contained the instructions for the teleconference and which he acknowledged in his objection, and the fact that he did not receive notice from the Tribunal that his request was being granted, I am satisfied that the applicant chose not to appear on the call.
8This Application was originally commenced against a number of other respondents. Those allegations were settled and a Form 25 was filed with the Tribunal. The remaining allegations are against an organizational respondent and two individuals employed by that organization.
9The applicant alleges that he experienced some damage to his basement as a result of a leaking water tank. The organizational respondent assists in resolving disputes between participating insurance companies and their clients. The applicant sought the assistance of the organizational respondent by letter dated March 9, 2009 to resolve a dispute with his insurer over the water damage to his home and the insurer's decision not to renew the applicant's home insurance.
10All communication between the respondents and the applicant took place in writing. The applicant's contact was initially with Ms. Smith and then with Mr. Maltman. There is no evidence that either Ms. Smith or Mr. Maltman had any knowledge of the applicant's self-identification with the grounds listed in his Application.
11The bulk of the applicant's allegations were resolved in the settlement. The applicant is unhappy with how he was treated by the remaining respondents. The allegation that the correspondence from Ms. Smith and Mr. Maltman can be described as "belittling" or "humiliating" or "discriminatory" is without foundation. For example, the applicant alleges that the reference by Ms. Smith in one of her letters to the concept of subrogation is discriminatory.
12In addition, even if I accepted the applicant's allegations, there is no evidence to connect the treatment he experienced to the prohibited grounds he is relying on, and therefore no evidence to support a finding of discrimination.
13Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.
Dated at Toronto, this 2nd day of March, 2012.
"signed by"__________
Leslie Reaume Vice-chair