Barbara Shaw v. Wollaston Township and Dan McCaw, 2012 HRTO 802

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Shaw

Applicant

-and-

Wollaston Township and Dan McCaw

Respondents

Interim DECISION

Adjudicator: Leslie Reaume

Date: April 23, 2012

Citation: 2012 HRTO 802

Indexed as: Shaw v. Wollaston Township

APPEARANCES

Barbara Shaw, Applicant ) Self-Represented

Wollaston Township, Respondent ) Suzanne Hunt, Counsel

Dan McCaw, Respondent ) Kandace Davies, Counsel

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, ancestry, ethnic origin, sex and reprisal or threat of reprisal.

2By Case Assessment Direction dated July 4, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

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 observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could create a legal basis for a violation of the Code. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available and 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. 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.

6Having reviewed the materials and considered the oral submissions of the parties, 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. The applicant’s oral submissions during the summary hearing made the basis for her Application somewhat more clear. The applicant alleges that she was subjected to discriminatory comments and conduct on the basis of her gender and her status as a new resident in the community, in both the context of her employment and her status as citizen participating in public council meetings. The respondent township took no position on the merits of the Application. The individual respondent, who is the Reeve of the township, argued that there is a personality conflict rather than a violation of the Code at the root of the applicant’s concerns. Although the applicant’s approach to the prohibited ground of place of origin is novel, it would be premature to dispose of the Application at this stage.

7Pursuant 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.

8The parties have indicated a willingness to consider mediation. The Registrar will provide the parties with an opportunity to participate in mediation prior to the hearing of this matter.