Grant Hutchinson v. Seneca College of Applied Arts and Technology, 2013 HRTO 793

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grant Hutchinson Applicant

-and-

Seneca College of Applied Arts and Technology Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: May 13, 2013 Citation: 2013 HRTO 793 Indexed as: Hutchinson v. Seneca College

APPEARANCES

Grant Hutchinson, Applicant Self-represented

Seneca College of Applied Arts and Technology, Respondent Ann Burke, Counsel

Introduction

1This is an Application filed on August 8, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was discriminated against because of his disability and was reprised against when he was a student at Seneca College of Applied Arts and Technology (“Seneca College”) in 2011 and 2012. On November 6, 2012, Seneca College filed a Request for Summary Hearing.

2By Interim Decision, 2012 HRTO 2193, the Tribunal granted the Request for Summary Hearing on the basis that the applicant may be unable to prove a link to the Code ground and the actions of Seneca College or unable to prove that Seneca College reprised against him given the definition of reprisal in the Code. The summary hearing took place by conference call on April 15, 2013.

3Summary hearings are provided for under Rule 19A.1 of the Tribunal’s Rules of Procedure. It reads as follows:

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.

4The issue that Rule 19A requires me to determine is whether the Application, in whole or in part, has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

5In determining whether an Application has a reasonable prospect of success, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of “reasonable prospect of success” is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 - 9:

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.

6The Tribunal does not determine the merits of an Application at the summary hearing because no evidence has been heard. Therefore, the question is not whether the applicant has made out his case or whether the respondent has a defence, but rather, whether on the facts set out in the Application, the applicant can draw a link between his treatment and a prohibited ground of discrimination.

ANALYSIS

7In September 2011, the applicant was a student at Seneca College. His program was located at York University and he lived in a York University residence. On September 19, 2011, the applicant was awoken by the police and taken to Humber River Hospital for a mental health assessment because he was alleged to have made threats against another York University student. On September 26, 2011, the applicant and his father attended a meeting with representatives from Seneca College. During the meeting, the applicant’s father disclosed to the school that his son had been diagnosed with paranoia, depression and anxiety.

8The applicant was concerned about the events of September 19, 2011 and he looked to Seneca College for assistance. Seneca College took the position that it did not have jurisdiction over a residence at York University. The applicant became frustrated with the failure of Seneca College to act and engaged in e-mail communication in February and March 2012 that Seneca College found to be abusive. The applicant was asked to refrain from communicating with Seneca College personnel in this manner. He failed to do so.

9On March 1, 2012, York University issued a trespass notice to the applicant because of his conduct at an open forum where he raised issues concerning the incident that occurred at his residence on September 19, 2011.

10On March 19, 2012, Seneca College rescinded the applicant’s e-mail privileges on his Seneca student e-mail account because he continued to send messages that the school found offensive.

11On April 6, 2012, the applicant filed a complaint where he claimed the Dean of Students at Seneca College violated the Discrimination and Harassment Policy by rescinding his access to Seneca College’s e-mail system, by failing to follow up on the applicant’s complaints about York University, and by preventing him from communicating with Seneca College staff and students regarding assignments. The applicant claimed the Dean of Students would have behaved differently had the applicant not admitted to him that he suffered from anxiety and depression.

12On May 3, 2012, the applicant was suspended from Seneca College. During the summary hearing, counsel for Seneca College advised the Tribunal that the applicant was suspended for two semesters for violating the College’s e-mail policy.

13On August 8, 2012, the applicant filed his Application with the Tribunal. The applicant alleges that he was discriminated against when:

a. He was removed from his residence room on September 19, 2011 and taken to the hospital; b. His e-mail privileges were suspended by Seneca College and he could not complete assignments; c. He received a trespass notice from York University on March 1, 2012 and could not attend his Seneca College classes; d. Seneca College failed to investigate his human rights complaint; e. He was suspended from Seneca College in May 2012; f. He received a Trespass Notice from Seneca College as of May 2012.

14Seneca College submits the September 19, 2011 incident at York University residence had nothing to do with Seneca College. It submits further that when York University gave the applicant a Trespass Notice, Seneca College ensured the applicant could continue to attend his classes. Seneca College denies giving the applicant a Trespass Notice. Finally, the decision to suspend the applicant’s e-mail privileges and the decision to suspend the applicant from Seneca College were made because the applicant violated Seneca College’s e-mail policy. Seneca College submits the Code does not require it to accept the applicant’s abusive conduct.

15I agree that the incident of September 19, 2011 and the Trespass Notice issued by York University cannot be the subject of a complaint against Seneca College. There is no dispute by the parties that the applicant was living in a York University residence on September 19, 2011 and no dispute that York University issued the Trespass Notice. As such, these allegations are dismissed as having no reasonable prospect of success against Seneca College.

16The remaining allegations relate mainly to the suspension of the applicant’s e-mail privileges and his suspension from school. There is also an issue as to whether the school suspension included a provision that barred the applicant from attending Seneca College property. The applicant believes he received a Trespass Notice from Seneca College in May 2012. Seneca College denies that a Trespass Notice was issued by it.

17During the summary hearing, the applicant stated his behaviour was the result of his mental health disability. This raises the question as to whether Seneca College considered the applicant’s mental health when it suspended his e-mail privileges and suspended him from school. It raises the further question as to whether accommodations were provided to the applicant to enable him to continue his studies when his e-mail was shut down and when the Trespass Notice was issued by York University.

18At this point the applicant has satisfied me that he may be able to make a link between the events alleged to have occurred involving Seneca College and the ground upon which he made the claim. I cannot find, therefore, that there is no reasonable prospect that his Application will succeed. There may well be a defence to the applicant’s allegations of discrimination, however, that defence should be determined on the basis of the evidence and not by way of written submissions by Seneca College. For these reasons, the Tribunal will continue to process this Application.

19The parties will be contacted to determine whether they are interested in mediation. In the event one or both parties do not agree to mediate, the Application will proceed to a hearing.

20On April 2, 2013, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking leave to amend the Application. Seneca College requested that the RFOP be dealt with after the summary hearing was determined. The RFOP will be addressed in the event the Application does not proceed to mediation.

ORDER

21The allegations concerning the September 19, 2011 incident and the trespass notice by York University are dismissed as having no reasonable prospect of success against Seneca College.

22I am not seized.