John Bethune v. K.A.S. Personnel Services Inc., 2013 HRTO 1681

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Bethune

Applicant

-and-

K.A.S. Personnel Services Inc.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: October 7, 2013

Citation: 2013 HRTO 1681

Indexed as: Bethune v. K.A.S. Personnel Services Inc.

APPEARANCES

John Bethune, Applicant

Self-represented

K.A.S. Personnel Services Inc., Respondent

Costa Schizas, Representative

Introduction

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.

2The matter was scheduled for a hearing on July 22, 2013. The Tribunal directed that the parties address the issue of whether the Application should be dismissed on a summary basis. After hearing submissions from the parties, the Application was dismissed orally at the hearing, with written reasons to follow. Following the hearing, although not directed to do so, the applicant filed additional written materials. No written response was sought from the respondent.

3For the reasons that follow, the Application is dismissed.

DECISION

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is 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 the Application will succeed.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

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.

6As the Tribunal explained further in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

7In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal made the following observation regarding when the issue of dismissal for no reasonable prospect of success could be considered:

Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and do not involve calling witnesses. Summary hearings typically involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. In my view, the principle that an application should be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process.

8Having reviewed the written materials filed by the applicant, including his detailed witness statement and having heard oral submissions from the parties, I find that the applicant has not satisfied me that there is any reasonable prospect that the Application will succeed.

9The applicant alleges discrimination on the basis of disability. For the purposes of this decision I have assumed, without deciding, that the condition identified by the applicant is a disability. In his Application, he alleges that a number of his co-workers were present on June 7, 2011, when a particular co-worker called Bobby made a specific remark to him which was on its face both disparaging and directly related to his disability. For the purposes of this decision it is unnecessary for me to reproduce the remark.

10The applicant indicates that this statement prompted him to quit his job later the same day. He says that a member of the management staff and the union steward were trying to meet with him on an unrelated matter on the same date and he felt he could not attend that meeting because the comment made by Bobby was so devastating to him. He told the manager and union steward that he was quitting his job and left the premises.

11To succeed in his Application the applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination in this case, the applicant must prove a link between the alleged discriminatory actions and the Code grounds he has identified.

12While the comment he alleges made by the co-worker was clearly unwelcome and upsetting to the applicant and it may have been related to a disabling condition, the applicant does not allege that he informed the respondent employer about the conduct.

13In fact, he clearly states in his Application and supporting documents that he did not tell anyone in a position of authority. In fact, he says he avoided speaking to the respondent employer and his union steward because he wanted to leave the workplace. By his own account, when they tried to meet with them, he told them he was quitting his job and left the premises without telling them about the conduct that he now alleges amounted to a violation of the Code and without giving them an opportunity to look into the allegation and take appropriate corrective action.

14As a result, there are no allegations that relate to the conduct of the respondent employer that would show a link between the actions of a co-worker that he complains about in this Application and the prohibited ground that he has pleaded.

15Accordingly, the Application is dismissed.