Inglis v. Ontario (Children and Youth Services), 2013 HRTO 423

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Inglis

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: March 12, 2013

Citation: 2013 HRTO 423

Indexed as: Inglis v. Ontario (Children and Youth Services)

appearances

John Inglis, Applicant ) Self-represented

Her Majesty the Queen in Right )

of Ontario as represented by ) Cathy Phan, Counsel

Ministry of Children and Youth )

Services, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. This issue was addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2The applicant is employed as a Youth Service Manager at the Brookside Youth Centre, a secure custody facility for youth that is part of the Ministry of Children and Youth Services. The applicant’s work location was outside the secure area of Centre.

3In the spring of 2012, the respondent began a downsizing process at the Centre. The respondent eliminated 54 full-time positions, including three out of the 12 Youth Service Manager positions, and decided to move the remaining nine Youth Service Managers, including the applicant, to one location in the secure area of the Centre, where they would take on additional responsibilities.

4The applicant has an ankle injury which impairs his ability to be in physical contact with youth at the Centre. On June 8, 2012, he submitted a doctor’s letter to his supervisor, which requested that his disability-related needs be accommodated by ensuring that he had no contact with youth and not be placed in situations where use of force may be required.

5On June 25, 2012, the applicant’s supervisor told him to report to his new work location in the secure area of the Centre. In response, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which alleged that the respondent discriminated against him with respect to employment because of his disability. Specifically, he alleged that the respondent’s action constitutes harassment because he will be subjected to derogatory comments and behaviour from the other managers in the new work location.

6On August 21, 2012, the respondent filed a Response which denied the allegation of discrimination. The respondent stated that the applicant was moved to new work location for operational reasons, and that his disability-related needs are being fully accommodated because he is not required to have contact with youth or be involved in situations where use of force may be required. The respondent also filed a Request for Summary Hearing.

7The applicant did not file a Reply to the Response or a Response to the Request for Summary Hearing.

8On November 23, 2012, the Tribunal issued a Case Assessment Direction which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The summary hearing took place on March 6, 2013.

9Rule 19A of the Tribunal’s Rules of Procedures 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. The 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. 8-10:

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.

10The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

11In his submissions, the applicant stated that his Application has a reasonable prospect of success. He stated that the respondent has a practice of placing employees on accommodation close to their peer group in order to embarrass and pressure them to return to full work duties. He admitted that since reporting to the new work location, he has not had contact with youth or been involved in situations where use of force may be required. However, he stated that, because of the brotherhood work culture, he feels embarrassed when his co-workers are involved in such situations, and they see him staying in his office. When the Tribunal asked the applicant if his co-workers have made any comments to him, he stated that his co-workers would not purposely say anything to embarrass him, but that some of them have given him “side glances” when they have to deal with an emergency situation and see him staying in his office.

12In its submissions, the respondent stated that the Application does not have a reasonable prospect of success. The respondent stated that the applicant admitted that it fully accommodated his disability-related needs as per his doctor’s letter. The respondent also stated that the applicant’s allegation of harassment is based on speculation, and that he has failed to demonstrate there is a reasonable prospect that evidence that he has or that is reasonably available to him can establish a violation of the Code.

13In my view, the Application does not have a reasonable prospect of success because there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. I accept that the applicant may genuinely feel embarrassed when he is unable to assist his co-workers because of his disability, but I agree with the respondent that his allegation of harassment is based on speculation, and that he has failed to demonstrate there is a reasonable prospect that evidence that he has or that is reasonably available to him can establish a violation of the Code. The mere fact that some of his co-workers give him “side glances” when they have to deal with an emergency situation and see him staying in his office falls far short of establishing that the Application has a reasonable prospect of success.

14During the summary hearing, the applicant raised a number of new allegations of harassment and reprisal with respect to incidents that occurred mainly over the last couple of months. The respondent had no notice of these new allegations, and was unable to respond to them. If the applicant wants to pursue these allegations, he may file a new Application with the Tribunal.

ORDER

15The Application is dismissed.