HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Woodwork
Applicant
-and-
Presbyterian Church in Canada, Lorna Jack and Herb Gale
Respondents
A N D B E T W E E N:
Elizabeth Woodwork
Applicant
-and-
St. Luke’s Church and Sheila Plant
Respondents
A N D B E T W E E N:
Elizabeth Woodwork
Applicant
-and-
Food for Life and Karen Bonham
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Woodwork v. Presbyterian Church in Canada
APPEARANCES
Elizabeth Woodwork, Applicant Self-represented
Presbyterian Church in Canada and Herb Gale, Respondents Stephen Kendall, Representative
Lorna Jack, Respondent Bob Dickison, Representative
St. Luke’s Church and Sheila Plant, Respondents Sheila Plant, Self-represented
Food for Life and Karen Bonham, Respondents Anthony Baluara, Counsel
Introduction
1The applicant filed these three Applications in 2012 and 2013 concerning incidents that are alleged to have occurred at two food banks in the Burlington area.
2By Case Assessment Direction dated January 15, 2013, the Tribunal directed that it would hold a consolidated summary hearing to determine whether these Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed and/or on the issue of delay.
3Initially, because the applicant had stated her preference for proceeding by way of written submissions only, the Tribunal directed that the summary hearing would be conducted in writing. The applicant was given the opportunity to change her mind and opt for oral submissions. The Case Assessment Direction set out the following specific instructions for how the parties were to proceed:
a. The applicant was directed to provide a summary of her allegations for each of the Applications by February 12, 2013. This was because the Applications contained detailed, repetitive and often undated information that made it difficult to know what the applicant was alleging had happened, and when it had occurred.
b. The respondents, who had not been required to file Responses to the Applications, were given an additional four weeks to file summaries of their interactions with the applicant.
c. The applicant was required to file written submissions on the issues in the summary hearing by April 12, 2013.
4The applicant filed lengthy submissions with respect to why she was unable to prepare the summaries of her allegations (described in paragraph “a.” above) in the specified time period. She requested a six-month extension to comply with this direction, which the respondents opposed. The Tribunal convened a conference call to deal with this request, at which time the applicant asked for a further six-month extension.
5I noted in my Case Assessment Direction following this call that the applicant could not justify the lengthy delay in proceeding with her case. It became apparent during the conference call that the Tribunal process would be unduly protracted if the summary hearing was only conducted in writing, and so I directed that an oral summary hearing would take place.
6The applicant complied with the Tribunal’s directions to provide summaries of her Applications in advance of the hearing. The respondents, likewise, provided the summaries of their interactions with the applicant in advance of the hearing.
7Despite her reluctance to proceed by way of an oral hearing, the applicant provided full and helpful submissions at the summary hearing, which allowed me to better understand her allegations. She was advised at the summary hearing that she could also provide written submissions if she felt that she had missed anything in her oral submissions. The applicant has not availed herself of this opportunity and the time for doing so has passed.
8I have relied on both the parties’ previously filed written material and oral submissions in reaching my decision in these matters.
decision and analysis
The Law
9The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed, in whole or in part, because there is no reasonable prospect that the application will succeed.
10The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. In this case, with a few minor exceptions, the parties were in agreement with each other on the facts.
11A summary hearing can also deal with other preliminary issues. In this case delay was identified as an issue with respect to two of the three Applications. Sections 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (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.
12As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.
Background Facts
13As noted above, these Applications concern the applicant’s experiences at two food banks in the Burlington area, at which she was a client. She also asserts that she volunteered at one of these food banks for a brief period. The respondent Food for Life (which states its full name is Food for Life Canada Charitable Corporation) supplies the food for these and other outreach programs, as well as a number of organizations. It runs a charitable food recovery program in which it collects surplus, perishable food from restaurants and food suppliers in the Halton area for distribution to persons who need it.
14Food for Life states that it delivers food to 44 outreach programs, two of which are the programs run at the Burlington East Presbyterian Church (“BEPC”) and St. Luke’s Church (“St. Luke’s”). Both churches provided free space for a once-a-week distribution, and arranged for volunteers to help sort and distribute the food. Karen Bonham, one of the named respondents, is the Outreach Program Manager for Food for Life, and attended the programs at both churches most weeks.
Application 2012-10911-I
15The applicant filed this Application on February 9, 2012, alleging discrimination in the provision of goods, services and facilities because of disability, age and reprisal. She states her relationship with the food bank operated at BEPC started in early 2011, after she became dissatisfied with the food bank program operating at St. Luke’s. The parties agree that there was a brief period of time in which the applicant was attending both programs as a client.
16The applicant names Lorna Jack, who was a parishioner of BEPC and a volunteer in the program, as an individual respondent to this Application. Rather than naming BEPC, the applicant names The Presbyterian Church in Canada and Herb Gale (who was the then moderator of the national entity), as respondents to this Application. This was on the apparently incorrect assumption that the national organization had some control over the operations of BEPC. For the purpose of this summary hearing, however, I do not need to resolve the issue of the whether certain respondents should be removed and others added to this Application.
17The applicant’s allegations in this Application are as follows:
On February 7, 2011, one of the volunteers (who was later identified as “Cathy”) asked the applicant to provide the name, address and telephone numbers for the other individuals the applicant said she was picking up food for. The volunteer told the applicant that Food for Life had asked for this information, which the applicant subsequently found out was a “lie.”
On February 14, 2011, the applicant arrived at BEPC two hours early (as was her habit), which meant that she was first in line. Lorna Jacks asked her to allow a grandmother and her three-year old grandchild, who had come in last, to go first, which the applicant regarded as unfair. She pushed her way past the grandmother and granddaughter, obtained her food and left.
That same day, she wrote a letter of complaint to BEPC and the Moderator of the General Assembly (to the attention of Herb Gale) about the above two incidents, which she describes as discriminatory. She states in this letter that if they are not resolved she will take these matters to “Human Rights” and the Privacy Commissioner.
On February 28, 2011, the applicant was contacted by Karen Bonham, who asked the applicant to meet with her that day. At the meeting Karen Bonham required the applicant to write a letter of apology to the two volunteers, before she was allowed to continue using the programs of Food for Life.
On or about May 10, 2011, the applicant met with Karen Bonham at St. Luke’s, who advised the applicant that she was not to use the food banks at four churches, including BEPC and St. Luke’s. The applicant was not given an explanation for this decision.
18There is an overlap between what was occurring at the program at St. Luke’s, which the applicant had a prior relationship with, and what was happening at BEPC. Karen Bonham attended both programs and was familiar with the applicant. It would appear that there was a perception that the applicant may have been taking too much food, and arriving too early at these programs to ensure she always got the first selection of food. Whether or not these are valid concerns, the applicant has not alleged that there was this perception of her, or that the perception was discriminatory.
19On the face of the allegation, the February 7, 2011 incident in which the applicant was asked to provide the names, addresses and telephone numbers for those whom she was picking up food is unrelated to her age or apparent disabilities. Other than alleging that she had medical issues and learning disabilities, about which the volunteers at the BEPC were aware, the applicant has not suggested there was a link between them and the request for information. It is not enough that the applicant has a disability and was badly treated – she must allege the bad treatment was because of her disability in order for the treatment to be considered discriminatory. She has not done this, nor is there a basis for inferring this connection from the facts.
20With respect to the February 14, 2011 incident, the applicant takes the position that the preferential treatment of the little girl was unfair to her. During the summary hearing, the applicant stated that this little girl was not even tall enough to see the contents on the table, so she could not understand why she and her grandmother, who was accompanying her, were allowed to go ahead of the applicant and other adults who were waiting. This misses the point. The respondent, Lorna Jacks, states she wanted the little girl to go first because she was concerned she would be trampled by the adults, not because she wanted the girl to have first pick of the food. The applicant does not dispute that this was Ms. Jacks’ reason, but simply believes that the little girl could have gone last if that were the case.
21Not all distinctions on the basis of age are discriminatory. As noted by the Tribunal in A.B. v. Toronto Police Services Board, 2013 HRTO 447 at para. 60: “The Code is concerned with substantive discrimination, not merely differential treatment.” A small child clearly has different needs and vulnerabilities than a fully grown adult. It would be trivializing the protections in the Code to say that extending this courtesy to the little girl (and the adult who accompanied her) violated the applicant’s right to be free from discrimination on the basis of age.
22The applicant asserts that the response to her February 14, 2011 letter constitutes reprisal. It is true that the applicant asserts in her letter that she believes her rights have been violated and that if this goes unresolved she will go to “Human Rights” as she has done in the past. Thus, the first element of the reprisal test – that the respondents were aware that the applicant was claiming her rights under the Code – has been met.
23However, with respect to the second element, the applicant does not allege that the volunteers at the BEPC program, and those associated with the BEPC, responded to this letter. That is, the applicant does not allege that the named respondents reprised against her or threatened to reprise against her. Rather, it was Food for Life – more particularly, Karen Bonham – who responded. But these respondents are not named in this Application. Approximately a year later, the applicant filed against these individuals, but that is the subject of a separate Application that is discussed below.
24Moreover, the letter written by the applicant describes the actions of the two volunteers as “dispicable [sic], disgraceful, deplorable” and suggests that they have acted in an unchristian manner. She describes Lorna Jacks as “grumpy.” Ms. Bonham’s demand for an apology must be seen in this context. The letter from Food for Life, which the applicant acknowledges she received, demands that she apologize for her conduct and disparaging remarks. It does not demand that she withdraw her allegations of discrimination as a precondition for her continued use of Food for Life programs. The applicant’s hand-written apology, which Karen Bonham helped her write, reflects the true nature of Food for Life’s concerns.
25It is not clear from the applicant’s narrative whether she continued to use the BEPC program after this, but she did use the program at St. Luke’s in March 2011, where the parties agree there was a further altercation between her and another food bank client. The applicant states that this person was given preferential treatment, but makes no link between that treatment and a prohibited ground of discrimination under the Code. The applicant acknowledges that she followed the other client in her car for some distance as this person left the program that day. Following this, Food for Life made its decision to ban the applicant from its programs. This was communicated to the applicant in May 2011.
26Again, as with the February 28, 2011 demand for an apology, the May 2011 decision to prohibit the applicant from attending any Food for Life programs was not made by BEPC or anyone associated with it.
27The applicant has advanced a theory that she was prohibited from attending on the basis that Food for Life had a policy in which it could ask persons who had mental illnesses, which made them “chronically disruptive,” to use an outreach program where volunteers delivered the food directly to the persons’ homes. Thus, they could be prevented from attending one of the programs in the community by being routed to this alternative delivery system. The applicant states that the Tribunal can infer from this that the respondents perceived she had a mental illness and that is why she was not allowed to attend the community programs.
28The problem with this theory is that the applicant does not assert that she was required to use the home delivery outreach program, but was denied access altogether. That is, although in everyone’s version of events, the applicant was viewed as disruptive, it would appear that her conduct was not perceived to be linked to a mental illness because the home delivery option was not offered to her (although it was, months earlier, with respect to the people whom she said she was picking up for).
29In summary, the applicant has no reasonable prospect of success of establishing that the conduct she complains of is linked to a ground in the Code, is discrimination or reprisal under the Code, and/or is linked to the respondents named in this Application.
Applications 2012-12683-I and 2013-13421-I
30The applicant filed these subsequent Applications against St. Luke’s and Sheila Plant (2012-12683-I) and Food for Life and Karen Bonham (2013-13462-I) on October 3, 2012, and January 10, 2013, respectively. Although they include some of the same allegations as appear in the Application involving the BEPC program, they contain other incidents not previously alleged, dating back to October 2010. The last alleged incident of discrimination in both Applications is the decision banning the applicant from accessing the Food for Life outreach programs, which the parties agree was communicated to the applicant on May 10, 2011.
31The Applications were filed 17 and 20 months after the last incident of alleged discrimination, clearly filed outside the one-year limitation period set out in s. 34(1) of the Code. The question is whether the delays in filing were incurred in good faith.
32The applicant states that it was a very difficult year for her, with several deaths and a police investigation. In certain circumstances, this may amount to a good faith explanation, although in this case, the explanation fails to account for the fact that the applicant was able to file her first Application in a timely fashion, during the same time period.
33The applicant also states that she suffers from memory impairment as a result of an injury many years earlier. The applicant did not, however, suggest that she had forgotten about these incidents, or the time limits. Indeed, she failed to make the connection between her memory impairment and its impact on her ability to file her Applications to this Tribunal in a timely manner. In Dionne v. Toronto (City), 2011 HRTO 317, the Tribunal states at para. 9:
While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code ...
34It bears repeating that the applicant was able to pursue other legal avenues during this period. Her impairments did not “prevent” her from pursuing her rights under the Code.
35Finally, it is clear that the applicant was aware that Food for Life was in some way responsible for the programs and separate from the churches in which they were delivered. She acknowledges that when she became dissatisfied with the program at St. Luke’s in January 2011, she phoned up the Food for Life program and asked them to refer her to another program. Moreover, the February 28, 2011 letter in response to her February 14, 2011 letter of complaint was on Food for Life letterhead and signed by Karen Bonham.
36Given the absence of evidence that the delays in filing were incurred in good faith, the Tribunal is without the jurisdiction to deal with these Applications. It is not necessary, therefore, to address the issue of prejudice.
ORDER
37Application 2012-10911-I is dismissed as having no reasonable prospect of success. Applications 2012-12683-I and 2013-13421-I are dismissed on the basis of delay.
Dated at Toronto, this 27th day of November, 2013.
“Signed by”
Naomi Overend
Associate Chair