Felecita Fortune v. Toronto Transit Commission, 2013 HRTO 1866

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Felecita Fortune

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: November 6, 2013

Citation: 2013 HRTO 1866

Indexed as: Fortune v. Toronto Transit Commission

APPEARANCES

Felecita Fortune, Applicant

Kyla Fortune, Representative

Toronto Transit Commission, Respondent

Steve Lavendar, Counsel

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 goods and services because of race, colour, and age. The applicant also requested to amend her Application to allege discrimination because of disability.

2The respondent denies having discriminated against the applicant contrary to the Code. The respondent also requested that a summary hearing be held, as it submitted that the Application should be dismissed as having no reasonable prospect of success.

3The Tribunal granted the respondent's request for a summary hearing. In a Case Assessment Direction ("CAD") dated September 26, 2012, the Tribunal directed that a summary hearing by teleconference would be held, at which the applicant should make argument about why the Application should not be dismissed as having no reasonable prospect of success and should point to the evidence upon which she would prove a link between the respondent's actions and the grounds cited.

4The summary hearing took place and both parties participated.

DECISION

5For the reasons that follow I find that this matter has no reasonable chance of success and it is dismissed.

ANALYSIS

Summary Hearings

6In a summary hearing, the issue 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 a part thereof will succeed. It is outlined in Rule 19A of the Tribunal's Rules of Procedure:

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.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

8Initially, in her Application, the applicant alleged that when she tried to board a bus on April 21, 2011, the bus driver, an employee of the respondent, failed to lower the bus for her. She states that she uses a cane and alleges that she is unable to get into the bus unless it is lowered, due to her disability. She also identifies herself as of "Black-African West Indian origin", "Trinidadian by birth" and states that she is 60 years old. She alleges that when the bus driver did not lower the bus, she struggled to get into the bus and fell in the process. She alleges that the bus driver did not help her to get up or inquire as to whether she was alright, but simply continued on his route. She alleges that the "act was willfully done because of my colour, race, age and my disability". She alleges that by the time she got home, she experienced swelling in her hand and knees from the fall. She alleges that she continues to suffer a swollen right arm and knees due to the fall. Elsewhere in her Application, she states her belief that the driver "wanted some sort of confrontation" and that she "tried getting on the bus without telling him anything". She also stated that she has "used the ttc and [I] know the procedures for getting on the bus with a device."

9Elsewhere in the Application, she answers the Application form's pre-printed question "Explain why you believe you were harassed or discriminated against based on your disability or a perceived disability". She states that the ramp on the bus is "to assist people with canes or who have difficulty with getting on the bus" and that the bus driver "refused to completely assist me at the time of me entering the bus."

10In its Response, the respondent submitted that the applicant has simply made bald assertions, and that there is no reasonable prospect that the Application will succeed. Further, the respondent submitted that in connection with a claim for payment from the respondent's insurance company, the applicant completed a statement on May 3, 2011, describing the events of April 21, 2011. In that statement, a copy of which was included with the Response, she gave an account of events which indicates that she had folded and put her collapsible cane away while the bus was still in the distance, the bus driver lowered the bus though not all the way, she did not ask him to lower it any further, nor did she say anything else to him, and when she fell, the bus driver got up, but a woman behind her had stepped in to assist her in getting up. The respondent submits that according to the applicant's May 3, 2011 version of events, there was no reason for the bus driver to believe she walked with a cane or wanted the bus to be lowered further. Further, the respondent submits that according to the applicant's own version of events, she herself "was not immediately aware that she was injured, or realize the possible extent of her injuries until she went home".

11On October 1, 2012, the applicant filed a Request for Order During Proceedings ("RFOP"), requesting to amend her Application to add a claim of discrimination on the basis of disability. In recounting the narrative section again, she alleges that she saw the bus coming in the distance, and folded her cane as the bus pulled up to come to a stop. She alleges that the driver "did not completely lower the ramp as it should have been done".

12On October 17, 2012, the applicant filed a Reply, containing a similar narrative to the one in her RFOP.

13At the summary hearing, the applicant submitted that the respondent had provided no clear direction regarding how to make a request that a "kneeling bus" be lowered. She submitted that there is no clarity with respect to when a driver is expected to lower a bus. She submitted that it is not clear whether the patron must request that the bus be lowered, or whether it is at the driver's discretion.

14At the summary hearing, the applicant also submitted that the proper procedure was not followed when she was injured, as the driver did not ascertain whether she was all right, nor did he call an ambulance. She also alleges that when she called customer service to report the incident, they had no report of it from the bus driver, and that subsequently the bus driver said that nothing had happened that day. She submitted that there must be an investigation to determine whether the bus driver was properly trained, and to ascertain the number of occasions on which he has been involved in such an incident, and to determine whether he is a "disgruntled employee".

15As the Tribunal noted 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.

16The CAD issued in this matter indicated clearly that at the summary hearing the applicant was to point to the evidence upon which she would prove a link between the respondent's actions and the grounds cited. In the course of the summary hearing, the applicant was given the opportunity to provide this explanation.

17The applicant has made an allegation of discriminatory treatment, but has not identified what evidence she would be able to call to indicate a link between the bus driver's alleged actions and her race, colour and age. She submits that an investigation is needed, but does not indicate that she has any evidence she would rely upon to establish her allegation. Without evidence indicating such a link, her allegation of discrimination on these bases is mere speculation and has no reasonable prospect of success. Accordingly, her allegation of discrimination on these grounds is dismissed on that basis.

18In her Application, the applicant did not include disability in the grounds she checked off as forming the basis of her claim of discrimination, though as noted above, elsewhere in the Application, she answers the Application form's pre-printed question "Explain why you believe you were harassed or discriminated against based on your disability or a perceived disability". She states that the ramp on the bus is "to assist people with canes or who have difficulty with getting on the bus" and that the bus driver "refused to completely assist me at the time of me entering the bus." In her RFOP, she seeks to amend her Application so as to include an allegation that the respondent discriminated against her on the basis of disability. Even if the allegation of discrimination on the basis of disability is considered, however, it is dismissed as having no reasonable prospect of success.

19There appear to be inconsistent accounts provided regarding when she put her cane away, either while the bus was still in the distance, or when it was pulling over to a stop at the curb where she waited to board it. In examining her accounts of the incident, however, though in the narrative section of her Application she stated that the bus driver did not lower the bus, in the above-noted section of the Application, where she answered the question about why she believes she was discriminated against on the basis of disability, she indicated that the bus driver did not "completely assist" her. This is consistent with the narrative she provides in her RFOP indicating that the bus driver "did not completely lower the ramp" and also with her May 3, 2011 written statement in which she says that the bus driver did not lower the ramp completely.

20It appears therefore that her allegation is that the bus driver lowered the bus, but did not completely lower it for her to get on and that this was discrimination on the basis of disability. In particular, her allegation of discrimination on the basis of disability appears to be a claim that the respondent did not provide her with accommodation up to the point of undue hardship. She has not indicated anywhere that she requested that the bus be lowered, nor has she alleged that she requested the bus be lowered further. In fact, in her Application, she stated that she tried to get on the bus "without telling him anything". I note that this is also consistent with her written statement from May 3, 2011.

21The applicant has pointed to no evidence that she made it known to the bus driver that his efforts were not sufficient to accommodate her, and in fact, she indicates explicitly that she did not so advise him and instead boarded the bus. Though she alleges that she fell as she got into the bus, this does not change the fact that she did not make any need for further accommodation known before getting in the bus, when the further accommodation could have been provided. Not having requested accommodation, and in view of the fact that she has not been able to point to evidence to explain how bus driver's alleged failure to lower the bus further was discrimination against her on the basis of disability, her allegation of discrimination on the basis of disability is also dismissed as having no reasonable prospect of success.

22The applicant also asserts that the "proper procedure" was not followed when she fell. She has not, however, pointed to any evidence to establish a link between this allegation and any of the grounds of discrimination she has cited, including disability. Without such a link, her allegation of discrimination cannot succeed, and this allegation too is dismissed as having no reasonable prospect of success.

23I find that there is no reasonable prospect that the Application will succeed and it is dismissed in its entirety.