Grant Hutchinson v. York University, 2013 HRTO 1263

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grant Hutchinson

Applicant

-and-

York University

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 19, 2013

Citation: 2013 HRTO 1263

Indexed as: Hutchinson v. York University

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 contracts because of disability.

2The applicant has filed a Request to Expedite (Form 14) and a Request for Interim Remedy (Form 16). The Tribunal has not delivered these Requests to the Respondent and no response to them is required.

Request to Expedite

3The Request to Expedite is denied. The Tribunal's Rule 21.2(5) provides that where such a Request is denied it need not give reasons and accordingly none will be provided here.

Request for Interim Remedy

4Rule 23 of the Tribunal's Rules of Procedure provides in part as follows:

23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16. If the Request is made at the same time the Application is filed, it need not be delivered to the other parties. If it is made at a later stage, it must be delivered to the other parties and filed with the Tribunal.

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so

5In TA v. 60 Montclair, 2009 HRTO 369, at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:

whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

6The Tribunal in TA v. Montclair, above, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.

7In this Request the applicant seeks $50,000 to cover legal fees incurred to date in responding to various events described in the applicant's Application. The applicant argues that he has done nothing illegal and the actions of the respondent, the police, medical professionals, prosecutors and judicial officials have caused him harm. As in the narrative of the Application the applicant provides a detailed narrative of his experience since September 2011, but little of it appears to be related to the conduct of this respondent. The declaration provided by the applicant's father confirms the broad narrative of his complaints but adds little to them.

8I am not satisfied that the applicant has met the significant onus of establishing that his Request meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. I have come to this conclusion because it is not clear that this Application has merit. Some of my reasons for this conclusion will be elaborated below. I am also not satisfied that the balance of harm or convenience favours granting the Request. Claims for monetary relief will rarely be considered as compelling an interim remedy. Finally in all of the circumstances it would not in my view be fair and just to grant the Request as the applicant has articulated no reasons why the interim remedy he seeks is necessary to further the remedial purposes of the Code.

Summary Hearing

9Having reviewed the applicant's materials and the Response of the respondent the Tribunal directs that a summary hearing will be held to determine whether this 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.

10Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

11Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

12The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent's alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

13As indicated earlier the applicant has provided a detailed narrative of this experience since 2011 which describes in large part the ongoing consequences for him of what appears to have been a decision by the police to apprehend him under the Mental Health Act, R.S.O. 1990, c.M.7. Little of what is described in the narrative of the Application appears to directly implicate the respondent who was the applicant's landlord over much of this period. An issue that must be addressed in this case is what is it that this respondent has done, as opposed to the police, judicial officials and health care professionals that the applicant believes violated the Code.

14The Tribunal also notes that the respondent has provided an explanation of the events in question, to which the applicant has not responded by filing a Reply. Rule 9.1 reads as follows:

An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

15In its Response the respondent also argues that the alleged incident giving rise to much of what is described in the Application is outside of the Tribunal's jurisdiction because it is said to have occurred more than one year prior to the Application being filed.

16Section 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

The parties may make submissions on whether the Application is outside the Tribunal's jurisdiction for this reason.

17In his materials the applicant makes references to ongoing criminal investigations and an investigation by the Law Society of Upper Canada. It is not clear how these investigations relate to the allegations against this respondent but to the extent that they do, there may be a question as to whether or not this Application should be deferred pending the conclusion of these investigations. The parties should be prepared to address those issues if these investigations result in concurrent proceedings dealing with all or some of the issues raised in this case.

18The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondents' actions and the grounds cited. No witnesses will give evidence during the summary hearing.

19If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

20A Notice of Summary Hearing will follow from the Registrar's Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference. The parties are reminded that Rules 16 and 17 do not apply in the summary hearing process and accordingly they are not required to provide full disclosure to each other as they would if the case were proceeding to a full hearing on the merits.

21The parties may wish to consult the Tribunal's Practice Direction on Summary Hearing Requests, available on the Tribunal's website at www.hrto.ca.

Other Matters

22The applicant has sent in many emails over the course of the past several weeks. Some of these emails appear to be unrelated to this Application. In one email the Applicant makes a vague reference to corruption in apparent response to a communication from the Tribunal. Others make demands that that the Tribunal enforce the law and include vexatious comments about the respondent and their counsel. By way of an example is an email sent to counsel for the respondent and copied to the Tribunal:

The best part is she calls herself a human rights lawyer. She can't even speak without slandering me. I've done absolutely nothing to the respondent. They need to be in jail immediately.

23The applicant makes other vague allusions to criminal acts by various unnamed individuals but by implication persons connected to the respondent in some way and claims that there is an ongoing criminal investigation as well as an investigation of a complaint, presumably the applicant's, by the Law Society of Upper Canada. The general tone of the applicant's correspondence with the respondent and the Tribunal is discourteous and disrespectful. The applicant is reminded of Tribunal's Rule 1.12.1:

All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants

24The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant's rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal's Rules. The Tribunal's procedures are less formal than a court's and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party's failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

25In Cochrane v. Workplace Safety and Insurance Board,2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal's process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal's process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party's submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

26The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended ("SPPA"), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. The Tribunal has applied this power to dismiss Applications where parties have engaged in vexatious conduct in the Tribunal's process. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; Okunbor v. Hopewell Logistics, 2009 HRTO 2124 and Vizcaya v. University of Toronto, 2010 HRTO 916.

27The applicant is also directed to cease his email communications with the Tribunal unless it is necessary for him to appropriately access the Tribunal process. Occasional and good faith requests for information are appropriate, demands that the Tribunal enforce the law are not. Vexatious comments about the respondent, their counsel, the Tribunal or others in some tangential way connected to this Application are not appropriate..

DIRECTION

28The Registrar will schedule a half-day summary hearing by conference call to address the issues outlined above. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

29I am not seized.