HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kandys Mattatall
Applicant
-and-
Horizon Plastics International Limited
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Mattatall v. Horizon Plastics International Limited
APPEARANCES
Kandys Mattatall, Applicant
Self-represented
Horizon Plastics International Limited, Respondent
Tara Kelly, Representative
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.
2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued directing that a summary hearing take place.
DECISION
3For the reasons that follow I find that this Application has no reasonable prospect of success.
ANALYSIS
Summary Hearings
4In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect of success that the Application or a part of it will succeed. Rule 19A of the Tribunal’s Rules of Procedure states:
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.
5In Reis v Mississauga (City), 2013 HRTO 954 at paras. 3-9, the Tribunal stated:
The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to assess applications at an early stage to ensure that they meet the minimum requirements under the Code to proceed to hearing. The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation and it is important that the parties be advised of this at the earliest opportunity.
The test that is applied at this stage is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. Discrimination generally involves an allegation of unfair treatment by a person who identifies with one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.
At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness which would not be considered discrimination in the legal sense, can leave a person with significant financial and emotional damage. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence to support the applicant’s belief that they have experienced discrimination.
The real question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.
In order to proceed to a full hearing some evidence must exist which goes beyond the applicant’s feeling or belief that their personal characteristic played a role in what they experienced. That evidence comes in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; or comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether one has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.
The parties are permitted an opportunity to make oral submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.
The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.
Application to the Facts
6The applicant asserted that the respondent had placed her under surveillance because she was disabled, and that this was discriminatory and an invasion of her privacy.
7The applicant alleged that there were other injured employees who were not placed under surveillance, and that she was treated differently. She alleged there were employees who could go hunting and drag moose out of the bush, and yet were not placed under surveillance.
8The applicant stated that Ms. Kelly did not believe that she was disabled enough to be off work.
9Ms. Kelly stated that surveillance was done because there was a long gap in the medical information; the applicant had been off work for a long period of time; and she had said she could not lift at all, which was different than her medical information.
10Ms. Kelly stated that surveillance is routine when there are such factors, and it is conducted by a third party company who is engaged lawfully and rightfully.
11Ms. Kelly stated that surveillance was not undertaken because of a personal vendetta against the applicant, and in fact, the applicant was well-liked and was a good worker.
12Ms. Kelly also stated that the surveillance showed that the applicant was not doing anything that contravened her restrictions.
13The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389.
14A significant part of this Application and the submissions during the hearing dealt with what the applicant terms the “unfairness” of having been placed under surveillance, when in the applicant’s view, she had done all that had been asked of her with respect to attending doctors’ appointments. The Tribunal has no power to deal with allegations of unfairness unrelated to the Code.
15I find that the application has no reasonable prospect of success. While there is no dispute the respondent’s decision to conduct surveillance of the applicant is related to her disability, I am not satisfied that she has a reasonable prospect of success of establishing, on a balance of probabilities, that the decision to conduct surveillance in these particular circumstances was discriminatory, or that it amounted to differential treatment based on her disability.
16Assuming that the applicant’s evidence is true, she said she was placed under surveillance because the respondent did not think she was disabled enough to be off work, which is a clear indication that the surveillance was done not because the applicant had a disability, but because the respondent suspected it was not as serious as the applicant had made out, and because there was a difference between what she had said about her restrictions and what her medical evidence said.
17The applicant stated that there were other employees who were disabled, but who were able to hunt and drag moose out of the forest, and that they were not placed under surveillance. However, she did not provide or point to evidence that these employees were in the same situation as the applicant with a difference between their stated capabilities and their medical evidence, nor that if the employer had such knowledge, they decided not to place them under surveillance, as they did the applicant. Even if the applicant had been able to point to evidence that she was treated differently than other employees who were disabled, she did not suggest or otherwise point to evidence that might suggest that this was because of disability or her particular disability. As stated above, the Tribunal has no power to deal with allegations of general unfairness. As such, the applicant has no reasonable prospect of establishing either differential treatment compared to other disabled employees or, even if she could, that such treatment was on the basis of a Code-protected ground (i.e. disability).
ORDER
18I find that the application has no reasonable prospect of success, and the application is dismissed.
Dated at Toronto, this 24th day of June, 2013.
“Signed by”
Dawn J. Kershaw
Vice-chair