Vallentyne v. Georgina (Town), 2013 HRTO 785

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynn Vallentyne

Applicant

-and-

The Town of Georgina

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: May 10, 2013

Citation: 2013 HRTO 785

Indexed as: Vallentyne v. Georgina (Town)

APPEARANCES

Lynn Vallentyne, Applicant

Brenda Kocot, Representative

Town of Georgina, Respondent

Adam Guy, Counsel

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, services and facilities because of disability and association with a person identified by a prohibited ground of discrimination.

BACKGROUND

2The applicant identifies herself as a stroke victim and asserts that she requires emergency services available to her, as well as brain injury counselling and the support of family and friends. The applicant wishes to move into a house she owns on Christidis Drive, which is an un-assumed road. The applicant alleges that the respondent declined to upgrade the road to an assumable standard and therefore will not remove snow from the road or maintain it.

3By Case Assessment Direction dated November 7, 2013 the Tribunal ordered a summary hearing in this matter to determine whether the Application should be dismissed because it has no reasonable prospect of success. The Tribunal held the summary hearing on February 20, 2013, by teleconference.

APPLICANT’S SUBMISSIONS

4The applicant submitted that she currently lives on Hardwood Drive in the Town of Georgina, but also owns a property on Christidis Drive. After suffering a stroke, the applicant’s caregiver suggested that the house on Christidis Drive would be better for her, as the Hardwood Drive location has different levels. The Christidis Drive location is apparently also less expensive. Christidis Drive, however, is not maintained by the respondent, although the applicant alleges that the respondent maintains similar roads, but did not indicate whether such roads were assumed roads or whether the respondent upgraded the roads to an assumable standard. The applicant is concerned because emergency medical services may not be able to reach her if the road is not cleared of snow. The applicant submitted that the respondent will maintain the road if she had the road upgraded at her own expense. The applicant acknowledged that the respondent’s decision not to upgrade the road had no connection to her disability. Rather, the applicant pointed the potential effect on her if the road is not maintained.

RESPONDENT’S SUBMISSIONS

5The respondent submitted that the applicant provided no evidence of any link to the respondent’s decision not to upgrade Christidis Drive to a prohibited ground of discrimination – which the applicant acknowledged. The respondent further submitted that the applicant’s allegations do not amount to substantive discrimination even if assumed to be true.

ANALYSIS AND DECISION

6Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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, the Tribunal made the following comments at paragraphs 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.

8Section 11(1) of the Code states as follows:

A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

9In this case, the issue is whether the applicant’s allegations, assuming them to be true, may be reasonably considered to amount to a Code violation. In my view, the Application has no reasonable prospect of success and must be dismissed

10The Tribunal has noted that the Code is concerned with substantive discrimination and does not aim to eliminate all differences in treatment. Rather, the purpose of the Code is to address discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code. See C.M. v. York Region District School Board, 2010 HRTO 1494 at paragraph 4 and Harrington v. Hamilton (City), 2010 HRTO 2395 at paragraph 11. Not all actions that may have an impact on people identified by a ground constitute substantive discrimination.

11In this case, there is no direct discrimination because the applicant acknowledged that the respondent’s decision not to bring Christidis Drive up to assumable standard had no connection to her disability. Everyone living on the road will be subject to the same road conditions. In my view, the applicant’s allegations also do not amount to constructive dismissal under section 11(1) of the Code because she pointed to no evidence that the decision not to upgrade the road will cause her a disadvantage because of her disability. Anyone living on Christidis Drive faces the possibility that emergency medical services may not be able to reach them in inclement weather. Any disadvantage the applicant may experience regarding emergency medical services would be caused by her choice to live on an unassumed road, not her disability. The applicant’s case is entirely speculative. She is concerned that if she requires emergency medical services, they may be prevented from reaching her if they cannot reach her residence on Christidis Drive. In other words, the applicant’s concern that she would suffer a disadvantage as a result of the respondent’s decision not to upgrade the road to an assumable standard is speculative and she pointed to no evidence that would indicate that she is likely to.

12Christidis Drive is an un-assumed road and, as a result, the respondent does not maintain the road or clear snow from it. The applicant pointed to the fact that she will have to pay to have Christidis Drive upgraded in order to have the respondent maintain it, assuming she decides to move there. In Hamilton, supra, the Tribunal found that the greater costs associated with receiving greater use of goods or services, does not amount to substantive discrimination. In this case, the applicant would be required to pay to receive road maintenance services to which she is otherwise not entitled. In my view, this does not amount to substantive discrimination

13For these reasons, the Application has no reasonable prospect of success and is dismissed.