HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Banbury
Applicant
-and-
Kingston General Hospital
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Banbury v. Kingston General Hospital
WRITTEN SUBMISSIONS
David Banbury, Applicant
Self-represented
background
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 the provision of services because of disability.
2Upon receiving the Application the Tribunal sent the applicant a Notice of Intent to Dismiss and requested that he provide submissions on whether the Application should be dismissed. The Notice indicated that the Application and the narrative setting out the incidents of alleged discrimination do not appear to identify specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.
3The applicant provided submissions by email on May 4 and 6, 2013.
Analysis
4The narrative portion of the Application is written in a way that is disjointed and difficult to follow. The applicant makes reference to a visit to the respondent hospital in August of 2012 and alleges a misdiagnosis of a foot problem. There is nothing in the narrative that draws a link between the alleged failure of the respondent to correctly diagnose his foot problem and any disability from which he suffers. The applicant’s submissions do not address this issue. Rather, they consist of a series of allegations that various people at the respondent hospital, at Queen’s University and in the Kingston business community are engaged in an elaborate conspiracy against him.
5The narrative makes another allegation, namely that during his hospital visit the applicant was wrongfully made the subject of an Application for Psychiatric Assessment using a Form 1 under the Mental Health Act, R.S.O. 1990, c.M.7. The narrative appears to allege that the respondent wrongly perceived the applicant as suffering from a mental illness and, based on its assumptions about his mental state, detained him using a Form 1. The applicant maintains that he was not suffering from mental illness.
6Although the narrative is disjointed and confusing, it does establish a link between the alleged actions of the respondent and the disability or perceived disability of the applicant. In light of this, I am of the view that the Application is not plain and obviously outside of the Tribunal’s jurisdiction and it would not be appropriate to dismiss it on the grounds set out in the Notice of Intent to Dismiss.
7However, although the Application makes an allegation that draws a link between alleged acts of the respondent and a Code-prohibited ground, the applicant may not be able to prove that link. For this reason it is appropriate to hold a summary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The respondent need not file a Response.
8Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
9Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.
10The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.
11The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will rely to prove a link between the respondent’s actions and the grounds cited. No witnesses will give evidence during the summary hearing.
12If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.
13A copy of the Application is delivered to the respondent with this Interim Decision. The respondent need not file any materials or a Response to the Application unless directed to do so by the Tribunal. The respondent must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered.
14A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.
15The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.
order
16The Application will not be dismissed for lack of jurisdiction.
17The Tribunal will hold a half-day summary hearing by conference call. The respondent must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered. The Registrar will then schedule the summary hearing. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.
Dated at Toronto, this 17^th^ day of May, 2013.
”signed by”
Paul Aterman
Vice-chair