Kelly Mackin v. Houselink Community Homes, 2013 HRTO 1426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Mackin

Applicant

-and-

Houselink Community Homes

Respondent

DECISION

Adjudicator: Alison Renton

Date: August 20, 2013

Citation: 2013 HRTO 1426

Indexed as: Mackin v. Houselink Community Homes

APPEARANCES

Kelly Mackin, Applicant

Self-represented

Houselink Community Homes, Respondent

Elizabeth Forster, Counsel

1This is an Application filed under section 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. The respondent filed two Responses. One dated June 12, 2012 filed by a representative of the respondent and one dated October 24, 2012 after the respondent retained counsel. In both, the respondent denies the allegations against it.

2The Tribunal determined, on its own initiative, that based upon a review of the materials filed in the Application, a summary hearing would be held to determine 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 it will succeed. A Case Assessment Direction (“CAD”) dated January 17, 2013 was issued and in which the Tribunal advised the parties that a teleconference hearing would be scheduled to hear this issue (“the summary hearing”).

3The summary hearing was scheduled for April 10, 2013. Prior to the April 10 date, the applicant requested an adjournment, which was denied in an Interim Decision dated April 3, 2013 (2013 HRTO 541). On April 10, and during the summary hearing, the applicant again requested that the summary hearing be adjourned and submitted, for the first time, medical documentation in support of her request. The respondent objected. Notwithstanding the late disclosure of the medical note and the objection of the respondent, the adjournment request was granted by the Tribunal in an oral hearing with the parties.

4The summary hearing was rescheduled to July 9, 2013 and both parties participated. The applicant filed additional submissions in advance of the hearing. The respondent did not.

THE APPLICANT’S POSITION

5The applicant alleges that she was discriminated against by the respondent, and specifically the respondent’s coordinator, when she performed volunteer work for the respondent. She alleges that she was treated differently from others when she was not advised that five work functions were cancelled until she started out for the function or arrived at it; the office was closed on one occasion when she attended it; she did not receive financial compensation for travel expenses; and she was not permitted to take a taxi when grocery shopping. By contrast, she alleges, other individuals received advance notification of event cancellations, one individual received compensation for travel expenses, and another had been permitted to take a taxi when grocery shopping.

6With respect to the coordinator, the applicant alleges that he mistreated her, “mentally abused” her, and did not want her to get ahead or succeed because of her background which consists of mental health issues and other personal circumstances. His treatment towards her led to her reluctant resignation from the respondent and she suffered emotional setback as a result of his treatment towards her. The applicant also alleges that the coordinator treated a number of other people inappropriately.

7The applicant submits that she can prove that she was discriminated against by introducing into evidence the testimony of others who received similar treatment from the coordinator, as well as various emails and a telephone recording which demonstrate that she made him aware of when she was attending the office or functions.

8The applicant submits that her Application should continue to proceed.

THE RESPONDENT’S POSITION

9The respondent does not dispute that the applicant has a disability within the meaning of the Code. In fact, it submits, all its volunteers are psychiatric survivors and the whole purpose of its existence is to advocate for better housing for individuals with mental health issues.

10However, the Application should be dismissed, the respondent submits, as there is no connection between the allegations and the applicant’s disability. The applicant’s allegations about the coordinator, who is no longer with the respondent, may establish that he was insensitive and/or unfair, but the allegations do not establish a violation of the Code. The respondent points out that on the Application, the applicant wrote that she filed her Application and alleged harassment and discrimination because she was assertive and had done personal work on herself such that the coordinator did not want to help someone like her. It also notes that the applicant alleges that others were subjected to the same treatment by the coordinator.

LAW AND ANALYSIS

11Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

12The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 to 10:

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.

13In this case, there are two aspects to the Application. The first are the specific allegations about the function cancellations, office closure, travel expenses and prohibition against using a taxi when grocery shopping. The applicant alleges that others were told about the event cancellations, permitted to claim their travel expenses, and use a taxi, whereas she was not. Although she alleges differential treatment, the applicant does not establish how this differential treatment is based upon her disability, the Code ground that she cited, even if some of the allegations, such as the failure to notify her of the cancellation of the events, were done, as seemingly alleged, deliberately to her. With respect to the office closure, there is nothing to link that allegation with her Code-related ground of disability.

14With respect to the applicant’s allegations about the coordinator’s ill treatment towards her, the applicant has not established how this treatment constitutes a violation of the Code on the basis of disability. When the applicant filed her Application, she was advised by the Tribunal that her Application was incomplete and she was required to provide responses to questions on her Application that were missing. In response to the question “Explain why you believe you were harassed or discriminated against based on your disability or perceived disability”, the applicant wrote, in part, “I believed and still believe that because I am assertive and have done extensive personal work on myself that …[the coordinator]… did not want to follow the goals, the mission, to help someone like myself. When working with consumer survivors and one with my history, I truly believe that I deserved to be treated with fairness and respect NOT the opposite, which is what he did constantly”. With this answer, the applicant offers factors other than her disability upon which the coordinators behaviour towards her was based.

15The coordinator’s treatment towards her may be unpleasant, undeserved, and/or unfair, however, the Tribunal has stated in a number of decisions that it cannot adjudicate claims of unfairness, but only violations of the Code. See, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

16Further, during the summary hearing, and on her Application, the applicant submitted that other volunteers experienced similar treatment by the coordinator as that she alleges she was subjected to. Again this may support her perception that he should not have been employed in the position that he was, but it fails to address how the coordinator allegedly discriminated against the applicant because of her disability.

17After reviewing all of the information before me, I find that the Application does not have a reasonable prospect of success. Accordingly, it is dismissed.