Lloy v. Ontario (Family Responsibility Office), 2013 HRTO 882

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Lloy

Applicant

-and-

Family Responsibility Office, Ministry of Community and Social Services

Respondent

DECISION

Adjudicator: Naomi Overend

Date: May 22, 2013

Citation: 2013 HRTO 882

Indexed as: Lloy v. Ontario (Family Responsibility Office)

APPEARANCES

James Lloy, Applicant

Sandra Dahir, Representative

Family Responsibility Office, Ministry of Community and Social Services, Respondent

Sharlene Ziniuk, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of services because of disability and marital status.

2By Case Assessment Direction dated February 15, 2013, the Tribunal directed that a summary hearing be held. The hearing took place by conference call on May 16, 2013. The purpose of the summary hearing was to address whether the applicant might be able to establish a link between the grounds alleged and the adverse treatment he reported.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed, in whole or in part, because there is no reasonable prospect that the application will succeed. The 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.

4The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

5Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

Decision and analysis

6The applicant was subject to a court order requiring him to pay monthly support to his ex-wife. This order required the respondent, Family Responsibility Office, to be responsible for the enforcement of the support order.

7In both his Application and his Reply, the applicant alleges that the measures taken by the respondent to enforce the order were discriminatory, but other than detailing garnishment orders on a number of his sources of income, which he found distressing, the applicant was unable to say why these actions might be discriminatory on the basis of either his disability or his marital status. Indeed, the applicant’s daughter, who made oral submissions on his behalf at the summary hearing, candidly admitted that she did not know why the ground of marital status was cited.

8On the face of the pleadings, however, it appeared that the applicant was also alleging that the respondent failed to communicate with him in a manner that accommodated his hearing disability, which in turn lead to the respondent taking draconian measures that he did not understand. However, during the course of the summary hearing, it appeared that the problem was not the manner in which the respondent communicated with the applicant, but its alleged failure to communicate with him at all that was at issue.

9It was common ground at the summary hearing that the applicant had calls with the respondent in which he communicated that he had a hearing impairment and wished to rely on his daughter to speak with the respondent’s enforcement officers. For this reason, the applicant also asked the respondent to communicate with him in writing.

10With respect to the telephone calls, the respondent submitted that in order to speak directly with the applicant’s daughter, it required the applicant to sign a third-party access authorization. This was because the subject-matter of the communications was highly confidential. The parties agree that the applicant refused to sign this document.

11Accordingly, every time the applicant wished to have his daughter speak with the enforcement officers at the respondent, he had to give his verbal authorization first. The parties agree that the applicant did this, and on no occasion was his authorization challenged, or did the respondent’s staff refuse to communicate with his daughter.

12The applicant further alleges that he and/or his daughter left messages with the respondent office, but that these calls were not returned. Likewise, despite many requests to receive written communications, the respondent failed to communicate in writing, often taking action without giving the applicant advance notice.

13The respondent disputes the factual assertions, saying that its log notes reveal calls were returned and mail sent when appropriate. It states that, given the nature of some of the actions (e.g., garnishment of bank accounts), advance notice would allow the person against whom these actions are being taken to frustrate the enforcement mechanism.

14In any event, unless the applicant is able to establish a link between the respondent’s alleged failure to act and a ground under the Code, such inaction is more appropriately described as negligence rather than discrimination.

15When asked to describe the nexus, the applicant’s daughter answered that the applicant was suspicious that the reason the respondent did not call him back or send written correspondence was because it was noted on his file that he had asked for accommodation of his hearing impairment. The applicant was not able to point to any evidence in support of that suspicion.

16As this Tribunal points out in Forde v. Avon Maitland District School Board, 2011 HRTO 1389, at para. 17:

The 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.

17In light of the failure of the applicant to identify evidence he would call (should this matter proceed to a hearing) on which the Tribunal might be able to find discrimination on the prohibited grounds of disability or marital status, there is no reasonable prospect that this Application will succeed.

order

18This Application is, accordingly, dismissed.