Hanbury v. The Corporation of the Church of the Holy Spirit, 2013 HRTO 1234

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eric Hanbury

Applicant

-and-

The Corporation of the Church of the Holy Spirit and Judith Alltree

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume Date: July 16, 2013 Citation: 2013 HRTO 1234 Indexed as: Hanbury v. The Corporation of the Church of the Holy Spirit

APPEARANCES

Eric Hanbury, Applicant Jordan Waltman, Counsel

The Corporation of the Church of the Holy Spirit and Judith Alltree, Respondents David Elenbaas, Counsel

Introduction

1This is an Application filed under section 34 of Part IV 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 and record of offences.

2By Case Assessment Direction dated April 2, 2013, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

3The 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.

4The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. 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.

5The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. Discrimination in the legal sense requires proof of adverse or unfair treatment which is connected to a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, the parties are asked to participate in a summary hearing.

6At 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.

7The 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.

8In 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; comparisons with how other people were treated. Many circumstances play a role in assisting the Tribunal in determining whether a person 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.

9The 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.

10The 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 an 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.

11There is no burden of proof assigned to either party in the summary hearing process and as a result, it is not up to the applicant to demonstrate that the application has a reasonable prospect of success. It is the role of the Tribunal at this early stage in the process to examine the allegations and determine whether or not the application should move ahead in the hearing process or be dismissed for no reasonable prospect.

12In this case, the applicant alleges that: he was employed by the respondent as an organist; the respondent was aware of a number of health issues that he was experiencing; he asked repeatedly for information about insurance coverage which the respondent failed to provide to him; and as a result of those inquiries which were directly connected with his health status, he was terminated.

13The respondent argues that the applicant was not an employee and that the evidence will establish that there was no discrimination but rather a breakdown in the personal relationship between the applicant and the respondent Alltree.

14The test that I must apply at this early stage in the proceeding involves accepting the applicant’s allegations as true. In my view, both the question of the applicant’s status as an employee and the reasons for his termination cannot be resolved without evidence. Accordingly, I cannot determine that the Application has no reasonable prospect of success. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

15In these circumstances the Application will continue to the next stage in the hearing process.

Direction

16The Tribunal will set this Application for a three-day hearing.

17I am not seized.