Woodwork v. Governing Council of the Salvation Army in Canada, 2013 HRTO 1539

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Woodwork

Applicant

-and-

The Governing Council of the Salvation Army in Canada and Jeff Johnston

Respondents

DECISION

Adjudicator: David Muir

Date: September 13, 2013

Citation: 2013 HRTO 1539

Indexed as: Woodwork v. Governing Council of the Salvation Army in Canada

APPEARANCES

Elizabeth Woodwork, Applicant

Self-represented

The Governing Council of the Salvation Army in Canada and Jeff Johnston, Respondents

Blair McCreadie, Counsel

1This is an Application filed pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990 c. H.19, as amended (the "Code"), alleging discrimination in contracts, employment, goods, services and facilities, and housing on the grounds of creed, disability, receipt of public assistance and reprisal.

2In a Case Assessment Direction, a re-hearing of the summary hearing in this case was scheduled. The parties attended and in accordance with the Tribunal's usual practice in a summary hearing the applicant made her submissions first, followed by the respondents. The applicant asked for leave to provide her reply submissions in writing and on consent leave to do so was granted. The applicant made lengthy submissions in reply. It appears from the applicant's submissions that the applicant may have been recording the hearing without leave to do so.

3For purposes of this Decision I have assumed that the applicant is a person with a learning disability. The applicant advises that she is currently in receipt of ODSP benefits.

4The applicant had been a client of the food bank operated by the organizational respondent for a number of years prior to the events giving rise to the incidents complained of in the Application. Despite the various social areas and grounds pled, the allegations the applicant has made in the Application relate primarily to a claim of discrimination in goods and services on the grounds of disability and reprisal. The allegations in the Application are summarized as follows:

The applicant alleges that she received less in a Christmas hamper than an acquaintance.

The applicant alleges that she was reminded to take only the allotted number of each item and others were not. The applicant also alleges that she was scrutinized where others were not.

In December 2009 the applicant alleges that she was asked by staff to take an application form to complete. When the applicant asked why, she was told that this was the way things were being done and she would also have to provide proof of receipt of ODSP. The applicant then saw another client completing the form in front of the staff member. The applicant complained to an employee of the respondent who said to drop off the Application form at the church and someone would be in touch with her, but no one has.

The applicant alleges that in December 2009 the male staff lined up and pranced in front of her. She does not know why but it made her feel uncomfortable.

The applicant makes a number of allegations about a "contract" the applicant was required to sign in April 2010. The applicant alleges that she told staff that she was a person with a learning disability and asked that it be explained to her. A staff member allegedly told the applicant that it was necessary to get food and to help the respondent serve her better. The applicant alleges that she did not explain it completely and she did not have time to get legal advice about it and properly consider it.

The applicant alleges that the "contract" is discriminatory because whether you sign it or not, you cannot get services if on social assistance. The applicant believes it is discrimination to prevent those on assistance from getting food while feeding your staff with food from the food bank.

The applicant also alleged at the hearing that the "contract" was discriminatory because it is contrary to her creed to allow people to talk about her and share her information with other agencies.

The applicant alleges that she wrote a letter of complaint outlining her concerns with the "contract". She asked for a response but did not get one. She asked about the use of her personal information and did not get a response. The applicant wrote a second letter. After the second letter she was told by a female staff person that she could never come back to the food bank.

The applicant alleges that the "contract" was a form or reprisal for her complaint about differential treatment in November/December 2009.

5In lengthy written submissions provided by way of written reply after the hearing, the applicant made other general allegations of differential treatment over a number of years prior to the events described in the Application.

6At the hearing, the applicant introduced a new allegation to the effect that the Salvation Army had entered into a contract with another organization, Food for Life. She alleges that Food for Life engages in discriminatory practices and by extension this organizational respondent is implicated in these discriminatory practices. The applicant does not appear to allege that she was impacted by any of these alleged discriminatory practices or policies. I have reviewed the material referred to by the applicant and it is unclear how this contractual relationship amongst various food bank operators is discriminatory. More directly I find that I have no jurisdiction to deal with this allegation as it was not raised in the Application which was filed in June 2010 and is now long out of time. See section 34(2) of the Code.

7The Application is dismissed. I am satisfied, having reviewed the materials filed to date and the parties' submissions at the summary hearing, that this Application has no reasonable prospect of success.

8The summary hearing was conducted pursuant to Rules 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.

9Details 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.

10The 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. That is the issued raised in this Application.

11A key concern of the applicant was the "contract" she alleges she was required to sign in order to receive services from the respondent Salvation Army. The applicant alleges that she was not given enough time to consider the document or get legal advice about it. She also complains that she was not given a blank copy of it. The "contract" the applicant complains about is a waiver or consent to release the applicant's personal information which the respondent collects in the course of its operations. The respondent had been collecting personal information about its clients without these waivers and determined that it was appropriate that it have clients provide these waivers. The respondent asserts that it collects personal information about its clients for a number of purposes but primarily with a view to better serving its clientele. For example, the respondent attempts to provide support to clients based on their actual needs. To determine need of necessity requires access to personal information about the client. As another example, the food banks share information about their clients with other food banks with a view to reducing clients' using multiple food banks. Other reasons for the collection and sharing of personal information were asserted by the respondent; however, these two examples are sufficient for these purposes.

12The applicant was asked to sign a consent and initially did so. She subsequently rescinded her consent and was advised that she could not access the organizational respondent's services until she signed it. Whether fair or unfair, it is entirely unclear how the requirement of a consent to release personal information engages any of the Code grounds relied on by the applicant. There is no link between the thing complained of by the applicant and the grounds cited by her.

13The applicant also alleges that she asked for a verbal explanation of the consent and the explanation she received was not adequate. However, she describes a verbal interaction with a staff member who appears to have explained the gist of the document to her. She also complains that she did not have time to consider the waiver form and/or get legal advice about it. I do not agree. I understand that the applicant had to sign the waiver in order to access the Salvation Army's services, but she could have done that at any time as the material makes clear. If the applicant wanted time to consider the document and get legal advice she could do so and can still do so. As previously stated, the Tribunal does not have jurisdiction to remedy every act of unfairness or inadequate and indifferent service but is concerned with substantive acts of discrimination on Code grounds. At worst the allegation here is that the staff person she spoke with did not adequately explain the document to her, but she also has had the opportunity to consider the document on her own and consult whomever she wishes to about it. I am satisfied that the applicant has no reasonable prospect of establishing that the introduction of the waiver or her being asked to sign it in order to access the respondents' services was discriminatory.

14The applicant's allegations that she was denied service because she was in receipt of social assistance is unfounded as well as there is no evidence that this is the case and in fact it was not the case.

15The applicant also alleges that the introduction of the waiver was in reprisal for her having earlier raised a human rights concern. The applicant can point to no evidence that this is the case. The respondent states, and this is not contradicted, that all clients of the food bank were asked to sign these waivers and the applicant confirms that this was the case. There is no evidence to support the conclusion that the introduction of the waiver, to be signed by all, was actually intended to punish the applicant for a prior complaint she had made. See Noble v. York University, 2009 HRTO 1201.

16As regards the other central allegations of the applicant, that she was somehow treated differently from others in the manner in which food was distributed, including her vague allegations about the Christmas hamper she received, assuming that the applicant's perceptions of differential treatment are accurate, she can point to no evidence that would tend to support the conclusion that any of the grounds cited were a factor in the differential treatment. The respondent pointed out that it attempts to distribute the food it has based on need. Need is dependent on a number of facts of which the respondent may be aware and the applicant not. Accordingly there will be differential treatment of clients based on these factors. The applicant has no evidence that would tend to establish that any alleged differential treatment of her was related to the grounds she has cited. As regards the allegation articulated at the hearing that she received a gift certificate in a lesser amount than another person and had to return to get the difference, there is no indication on the applicant's best case that this was anything other than an error. More to the point there is no evidence that the applicant can point to which would support her claim that it was linked to any of the grounds of discrimination cited by her.

17The applicant also claimed that the respondents' actions constituted discrimination on the basis of creed. There were no particulars of this claim provided in the Application. However, as indicated, the applicant argued at the hearing that the waiver was discriminatory because her creed does not permit her to let people talk about her or for her to share her private information. I asked the applicant to elaborate on the basis for this claim. The applicant indicated that she was a Christian. I am not satisfied that there is any basis to the claim that the applicant's beliefs as a Christian prevent her from signing a consent to release personal information.

18For all of these reasons I have concluded that this Application must be dismissed as having no reasonable prospect of success because there is no evidence reasonably available to the applicant which would tend to establish a link between any of the incidents complained of and grounds claimed.