David Martel v. College of Denturists of Ontario and Epaminondas Kaltekis, 2012 HRTO 840

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Martel

Applicant

-and-

College of Denturists of Ontario and Epaminondas Kaltekis

Respondents

decision

Adjudicator: Keith Brennenstuhl

Date: April 24, 2012

Citation: 2012 HRTO 840

Indexed as: Martel v. College of Denturists of Ontario

APPEARANCES

David Martel, Applicant ) Self-represented

College of Denturists, Respondent ) Pierre Champagne, Counsel

Epaminondas Kaltekis, Respondent ) Nicole Kaltekis, Representative

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 in the area of services on the basis of disability.

2By Case Assessment Direction dated January 27, 2012, the Tribunal directed that a summary hearing be held by teleconference. It stated as follows at paragraph 6:

The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during the summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success and/or pursuant to s. 45.1 of the Code and point to any evidence on which the applicant will prove that the respondents’ actions were based on a prohibited ground. No witnesses will be called during the summary hearing.

Background

3The applicant has been HIV positive for the last 20 years. In July, 2010 the applicant attended the “Dental Clinic” (the “clinic”) where he inquired about the cost of having an upper denture made. The personal respondent, who is the principal denturist at the clinic, told the applicant the cost would be $950.00. At this point the personal respondent took impressions of the applicant’s upper and lower arch.

4In December 2010 the applicant returned to the clinic and gave the personal respondent a $300.00 deposit. On this visit the personal respondent did a bite registration. The applicant made a further $300.00 deposit in May 2011. The applicant next attended the clinic in the month of June, 2011 when he told the personal respondent that he had found another dentist and that he wanted a refund. No refund was immediately provided. Later that day the applicant faxed to the clinic a copy of his request for a refund offering the personal respondent $100.00 for the dental work already done. According to the personal respondent, he felt that he had done more than $100.00 worth of dental work and was only prepared to refund the applicant $250.00.

5In July, 2011 the applicant went to the clinic in a very agitated state and demanded his refund and a fully itemized bill for the personal respondent’s services. Apparently, the applicant was very aggressive to the point where the personal respondent found it necessary to call the police. A police report was made and allegedly the police told the applicant that he would be charged if he returned to the clinic.

6Shortly afterwards the applicant filed a complaint with the College of Denturists about the personal respondent’s refusal to make a refund and to provide a bill for services rendered. In response to the complaint the personal respondent wrote to the College outlining the situation from his perspective. In his narrative he referred to the incident with respect to the police and characterized the applicant’s behaviour at that point as being “unstable”. Ultimately, through the College’s mediation services, the complaint was settled; the applicant received a refund of $400.00 and an itemized bill.

7The applicant alleges that the personal respondent discriminated against him when he refused to provide the applicant with an appropriate refund and an itemized bill. He claims that the College acted in a discriminatory manner. He claims that the College counselled the personal respondent to not respond to the applicant’s request for a refund or an itemized bill. He also claims that this direction “was against their own policy of being objective in dealing with Complaints.

Summary Hearings

8The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing the issue is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part of it will succeed.

9In 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.

Analysis

10It is evident that the applicant is upset and perhaps angry about the personal respondent’s conduct. Clearly the applicant feels that he was treated unfairly. The Tribunal does not have the power to deal with general allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code. The applicant is HIV positive and this could be considered a disability under the Code. Nevertheless, for the applicant to succeed with his Application as against the personal respondent, he must be able to prove, on a balance of probabilities, a link between the personal respondent’s alleged actions and the applicant’s disability. The applicant did not point to any evidence that could establish that link except for the wording of the response the personal respondent filed with the College where he described the applicant as being “unstable”. It is unclear to me how that single reference is tied, in whole or in part, to the applicant’s disability. I am satisfied the term refers to the allegedly agitated state and aggressive behaviour that the applicant exhibited when he went to the clinic to demand a refund. The applicant concedes that he was indeed very angry and had raised his voice and that the personal respondent called the police in response to his behaviour.

11In my view, the interactions between the applicant and the personal respondent are not related to discrimination based on disability. The conflict between the applicant and the personal respondent relates to the amount of refund to which the applicant was entitled and whether a bill for services should have been issued. These matters are not the proper subject of an application to this Tribunal.

12As for the College, even if the College was not totally objective in its dealings with the applicant, as suggested by the applicant, he has failed to demonstrate the link between the alleged conduct of the College and the applicant’s disability. It is clear that the applicant feels that the College mishandled his complaint against the personal respondent but in the absence of any direct or indirect evidence which could support an inference linking the College’s conduct to the applicant’s disability, there is not a reasonable prospect that the application as against the College can succeed.

13I find that the Application has no reasonable prospect of success. The applicant has not demonstrated that there is any evidence linking the conduct he complains of to the ground under the Code he has identified.

14The Application is dismissed.