HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Henry Freitag
Applicant
-and-
The Corporation Of The Town Of Midland
Respondent
INTERIM DECISION
Adjudicator: Ruth Carey
Indexed as: Freitag v. Midland (Town)
WRITTEN SUBMISSIONS
Henry Freitag, Applicant
Self-represented
The Corporation of the Town of Midland, Respondent
Andrew Mae, Counsel
1These Applications are 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. Both involve the condition of public walkways in Midland.
2In both Applications the respondent has filed a Request for Order During Proceedings (RFOP) requesting that the two Applications be heard together, and a Request for Summary Hearing. In its RFOP the respondent also requests leave to amend its Response to the first Application; and that the in-person hearing scheduled for August 2, 2013 be adjourned.
3The applicant filed a response to the RFOP in file 2012-11713-I but did not in file 2013-13558-I.
CONSOLIDATION
4The applicant does not object to the request that the Applications be heard together. The request is appropriate and it is granted.
THE REQUEST FOR SUMMARY HEARING
5The Request for Summary Hearing is granted. A summary hearing will be held to determine whether these Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Applications or part of the Applications will succeed.
6Rules 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.
7Details 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.
8The 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 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 grounds alleged.
9The Tribunal’s recent decision in Freitag v. Penetanguishene (Town), 2013 HRTO 554, involved the applicant and similar allegations of discrimination on the grounds of disability with respect to walkways in the town of Penetanguishene. Those allegations were dismissed on the basis that there was no reasonable prospect of success because the applicant’s medical evidence was insufficient to establish he could not safely walk on the surfaces concerned.
10The applicant is required to deliver all of the medical evidence he intends to rely on to support his claims as directed below.
THE ADJOURNMENT REQUEST
11The RFOP requests the in-person hearing currently scheduled for August 2, 2013 for Application 2012-11713-I be adjourned because one of its witnesses is unavailable. No witnesses give evidence during a summary hearing. Therefore, the hearing scheduled for August 2, 2013 shall proceed as a half-day summary hearing to be held by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Applications should not be dismissed as having no reasonable prospect of success, and respond to the arguments in the Requests for Summary Hearing.
12If the Tribunal determines that the Applications have no reasonable prospect of success, they will be dismissed. If the Tribunal does not find that the Applications should be dismissed under Rule 19A, they will continue in the Tribunal process.
13A Notice of Summary Hearing will follow from the Registrar's Office.
14The parties may wish to consult the Tribunal's Practice Direction on Summary Hearing Requests, available on the Tribunal's website at www.hrto.ca.
THE REQUEST FOR LEAVE TO AMEND THE RESPONSE
15The parties may speak to this request during the course of the summary hearing if necessary.
ORDER
16The Tribunal makes the following order:
a. Applications 2012-11713-I and 2013-13558-I shall be heard together;
b. No later than July 5, 2013 the applicant shall deliver to the respondent and file with the Tribunal all of the medical evidence he intends to rely on in these Applications;
c. The respondent shall deliver and file any responding materials no later than July 17, 2013;
d. The in-person hearing scheduled for August 2, 2013 is converted to a half-day summary hearing held by teleconference. A Notice of Summary Hearing shall follow from the Registrar.
17I am not seized of these Applications.
Dated at Toronto, this 24th day of May, 2013.
“Signed by”
Ruth Carey
Member