Stewart v. Employment Hamilton, 2013 HRTO 718

Kevin Stewart

Applicant

-and-

Employment Hamilton and Wally Stadnicki

Respondents

Adjudicator: Jo-Anne Pickel

Date: May 1, 2013

Citation: 2013 HRTO 718

Indexed as: Stewart v. Employment Hamilton

Kevin William Stewart, Applicant

Self-represented

Employment Hamilton and Wally Stadnicki, Respondents

Angela Eckart, Representative

Introduction

1The applicant filed two Applications alleging that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when they forced him to leave the corporate respondent’s premises. He also alleged that the respondents reprised against him by sending the police to his home after he told them he would file an application under the Code.

2By Case Assessment Direction dated October 24, 2012, the Tribunal directed that the matter be scheduled for a summary hearing by teleconference. The parties were directed to address three issues in the summary hearing: (1) whether the Application should be dismissed in whole or in part because it was not filed within the one year time frame set out in s. 34 of the Code; (2) whether there was a reasonable prospect that the applicant would be able to establish a link between the respondents’ conduct and a protected ground under the Code; and (3) whether there was a reasonable prospect that the applicant would be able to establish that the respondents intended to reprise against him for asserting his rights under the Code.

3While I am sympathetic to the applicant’s circumstances and the difficulties he is facing in his life, I find that his Application must be dismissed for the reasons set out below.

factual background

4The applicant filed an Application dated December 7, 2011. In an apparent attempt to amend his Application, he filed a second application form dated May 23, 2012. This form was treated as an intended amendment to his Application. The substance of the information contained on both forms is the same except for small factual details and a greater remedy claimed on the second form.

5The corporate respondent, Employment Hamilton, is an employment center that offers job search services to members of the public. The applicant entered Employment Hamilton’s premises to use a free phone in early March 2010. An employee asked him to leave when the office closed for the lunch hour but he refused. The respondents ended up forcing him to leave. The applicant admits that he may have gotten “off on the wrong foot” with the respondents. However, he claims that he left messages for them in the following days to apologize for his behaviour.

6The applicant states that he entered Employment Hamilton’s office again to use the free phone on July 27, 2010. He claims that the Executive Director, Angela Eckart, ordered him to leave. He claims that the respondents refused him services because they think he is mentally ill and/or addicted to drugs. In his Application, the applicant alleges that he left a message for Ms. Eckart in August 2010. He states that Ms. Eckart called him back and told him not to leave voicemail messages for her. The applicant states that he left another message for Ms. Eckart on October 11, 2010 to express his frustration that he was not being permitted to access Employment Hamilton’s services. According to the applicant, Ms. Eckart responded to these messages by sending the police to his apartment to tell him not to trespass on Employment Hamilton’s property.

7In his Application, the applicant states that he was in jail several times between October 2010 and the end of March 2011 on charges of assault. Around May 2011, he called Employment Hamilton to schedule an appointment. He was transferred to the Client Service Manager, Wally Stadnicki, who advised him that Employment Hamilton had a police report from October 12, 2010. The applicant left messages for Ms. Eckart and Mr. Stadnicki on July 3, 2011. In those messages he mentioned that he was planning to file an Application with the Tribunal. Ms. Eckart and Mr. Stadnicki once again contacted the police after these messages. The police once again attended at the applicant’s apartment. The applicant claims that the respondents contacted the police as a reprisal because he had mentioned his intention to file a human rights application in the message.

8The respondents deny discriminating or reprising against the applicant. They state that they were not aware of any disabilities that the applicant may have had and that they never perceived him to have a disability. According to the respondents, they asked the applicant to leave their premises because he was loud and engaged in threatening and disruptive behaviour. For example, they claim that when the applicant was asked by an employee to stop shouting and swearing loudly, he approached the employee, leaned into him, and screamed “shut up”. In their response, they set out various steps they claim to have taken in an attempt to de-escalate the situation before eventually issuing a trespass order against the applicant.

9The respondents state that the applicant left several voicemail messages for Ms. Eckart which they considered to be threatening. He left these messages at various times between March and October 2010 and between June and November 2011. The respondents state that they contacted the police in October, 2010 due to the applicant’s voicemail messages. At this time, the police attended at the applicant’s home to tell him to stop leaving intimidating messages for the respondents and to stay away from their offices. According to the respondents, the police advised them that they should immediately contact the police if the applicant left any more threatening voicemail messages. The respondents state that they were following this direction from the police when they contacted the police after the applicant left another message on July 3, 2011 in which, according to the respondents, he used the same kind of threatening language used in his previous messages.

10The applicant did not dispute that his behaviour was threatening or could be perceived as threatening. The applicant himself claimed to have left several messages for the respondents and Ms. Eckart in particular. He stated in his Application that he called the applicants to “express his frustration” at being prevented from accessing Employment Hamilton’s premises. He did not dispute the respondents’ claim that his messages were threatening or intimidating in nature, or could be perceived as such. There is also no dispute that the respondents had been in contact with the police as early as October 2010 and that the police had attended at the applicant’s apartment at that time. In the summary hearing, the applicant accepted that Ms. Eckart may have sent the police to his apartment in July 2011 because he called her a “bitch” in the voicemail message he left before the police attended at his apartment.

ANALYSIS

Parties’ Obligation of Courtesy and Respect

11In the summary hearing, the applicant repeatedly used inappropriate and disrespectful language toward the respondents’ representative and the Tribunal. During the respondents’ submissions, the applicant repeatedly shouted at the respondents’ representative to “shut up”. He also repeatedly interrupted Ms. Eckart’s and called her a liar. Despite my warnings that his behaviour was inappropriate, the applicant continued to disrupt the respondents’ submissions.

12Parties appearing before the Tribunal have an obligation to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. Rule 1.7 (v.i) of the Tribunal’s Rules of Procedure (“Rules”) provides that the Tribunal may:

(v.1) make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants.

13The Tribunal has stated that, while parties may express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments. See Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913. The making of such comments has been found to constitute an abuse of the Tribunal’s process, resulting in dismissal of an Application or Request for Reconsideration. See, for example, Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667, Vizcaya v. University of Toronto, 2010 HRTO 916. See also Felix v. Shoppers Drug Mart, 2011 HRTO 89 and Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.

14The applicant’s inappropriate conduct would have justified the dismissal of his Application due to his failure to treat the respondents’ representative with anything approaching the respect and courtesy expected in Tribunal proceedings. However, I agreed to provide the applicant with considerable latitude as it was unclear whether his outbursts were caused by a mental disability or other condition. It is for this reason that I permitted the summary hearing to continue despite the applicant’s clearly inappropriate behaviour toward the respondents’ representative in the hearing.

Summary Hearing

15Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal may dismiss an application if there is no reasonable prospect that the application or part of the application will succeed.

16In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant's ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant.

17The 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.

18Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination.

19As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, 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.

Alleged discrimination due to being barred from respondents’ premises

20I find that the applicant’s allegations that his disability was a factor in the respondents’ decision to bar him from their premises and to contact the police have no reasonable prospect of success.

21As noted above, the applicant did not dispute that his behaviour when he accessed the respondents’ premises was threatening or could be perceived as threatening. He also claimed that he had left several messages for the respondents in which he expressed his frustration with being barred from their premises. He did not dispute that these messages were threatening in nature or at least that they could be interpreted as such. In light of this undisputed information, the applicant has presented nothing beyond accusations and speculation in support of his allegations that discrimination was a factor in the respondents’ actions in banning him from their premises. While the applicant may believe that the respondents’ actions were unfair, his allegations that they were discriminatory have no reasonable prospect of success.

Reprisal Allegation

22I also find that the applicant’s reprisal allegation stands no reasonable prospect of success.

23In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code. See Noble v. York University, 2010 HRTO 878.

24As noted above, the applicant claims that the respondent sent the police to his home on or around July 4, 2011 as a reprisal for saying in a voicemail message that he planned to file an application with the Tribunal. I have no doubt that the applicant believes that the respondents’ actions were unfair. However, even based solely on the information he provided, I find that his reprisal allegation has no reasonable prospect of success. It is not disputed that July 4, 2011 was not the first time that the respondents had contacted the police. Both parties agree that the respondents were in touch with the police as early as October 2010. They also agree that the police had attended at the applicant’s home in October 2010. The applicant also stated during the summary hearing that he believed the respondents may have contacted the police because of the language he used in the phone message.

25Based on this information, I find that there is no reasonable prospect that the applicant will be able to show that the respondents contacted the police once again in July 2011 out of an intention to reprise against him for saying that he planned to file a human rights application. Instead, based on the information provided at the summary hearing, it seems clear that the respondents were in continuous contact with the police, as necessary, to respond to what they viewed as threatening conduct by the applicant.

26Accordingly, the applicant’s reprisal allegation is dismissed on the basis that it stands no reasonable prospect of success.

ORDER

27For the reasons set out above, the Application is dismissed.

Dated at Toronto, this 1st day of May, 2013.

”signed by”

Jo-Anne Pickel

Vice-chair