HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Hodkin
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the
Attorney General
Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Hodkin v. Ontario (Attorney General)
APPEARANCES
James Hodkin, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario, as represented by the Attorney General, Respondent
Tom Schreiter, Counsel
Introduction
1This Application, filed May 15, 2012, alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent denies having discriminated against the applicant.
3Prior to the first day of hearing in this matter, on October 28, 2013, the applicant sent a letter to the Tribunal, requesting accommodation for a visual disability, stating “I am therefore asking that some form of projection of the respondent’s presentation/documentation be utilized at trial by means of overhead projector, LED projector or whatever is simplest. I would also ask for a clerk or secretary to operate this function due to the chronic severe pain I suffer from”. The request appeared to be a request for accommodation when the respondent presented its case.
4On October 29, 2013, the Tribunal issued a Case Assessment Direction (CAD) in which it acknowledged receipt of the applicant’s correspondence requesting accommodation and stated that the Tribunal was unable to arrange for accommodation for the November 1, 2013 hearing date, due to the late notice. It stated that the hearing would convene as scheduled “in order to address any matters which may be addressed without the requested accommodation and in order to address any questions arising from the applicant’s October 28, 2013 email”. It also reminded the parties of the availability of mediation/adjudication pursuant to the Tribunal’s Rules of Procedure.
5At the first day of hearing, November 1, 2013, there was no overhead projector or LED projector provided for the presentation of the applicant’s case. Mediation/adjudication was offered and refused. At that time, the applicant advised, however, that he believed he could proceed with the hearing without the accommodation. I advised him that we would proceed as far as we could, but if he found that he needed the accommodation as the hearing progresses, he was to say so. The applicant did not subsequently indicate a need for accommodation for his visual disability that day. The applicant proceeded with the presentation of his case, but the hearing stopped before the end of the day, as the applicant advised that his father, who was waiting in the hall to be a witness, was ill and had to go home. As his elderly father was travelling to and from the hearing with the applicant, the hearing day finished at that point.
6Subsequent to the first day of hearing, the applicant wrote again requesting accommodation for his visual disability and also requesting that for medical reasons the matter only reconvene for half days at a time, preferably in the afternoon.
7The Tribunal scheduled several non-consecutive afternoons for the continuation of this matter.
8At the next hearing day, a projector was available for the applicant, but he had brought along his own large television monitor which he indicated that he preferred to use. The applicant used his own television for the remainder of the hearing days.
BACKGROUND
9The applicant was the plaintiff in an action in Small Claims Court at the respondent’s courthouse in Welland. He alleges that the respondent failed to provide adaptive equipment as an accommodation for him for his visual disability on the date of the trial of his action and that it forced him to walk unnecessarily despite his mobility disability.
10The applicant also alleges that court services required him to pay cash due to problems he encountered with the respondent’s debit payment machine. In his Application the applicant had not particularized this allegation, but at the hearing, he testified that this took place in March 2010.
11The applicant also states that the respondent failed to provide necessary accommodation to his father for his hearing disability on December 9, 2011, but this Application is only filed on behalf of the applicant himself. Accordingly, I do not address allegations relating to whether the respondent provided accommodation to the applicant’s father.
12The applicant also stated concerns with the fact that the judge assigned to hear his matter in Small Claims Court was in a professional relationship with the counsel for the defendants to his claim there. He takes the position that there has been a conspiracy against him. It was confirmed with the applicant at the outset of the hearing before the Tribunal that the assignment of the judge to his Small Claims Court matter is not the subject of this Application, which is limited to addressing the question of whether the respondent discriminated against him contrary to the Code.
13At the commencement of the hearing in this matter, the applicant confirmed that his allegations of discrimination contrary to the Code are as follows:
Court services required payment from him in cash due to problems he encountered entering the numbers on their debit payment machine, due to his visual disability;
Court services intentionally did not list his hearing on the list of hearings for the day, forcing him to wander around the courthouse trying to find the correct courtroom, and he has difficulty with mobility and;
The applicant made a request for data and photos to be projected on a large screen in the courtroom, due to his visual disability which requires magnification, and court services ignored his request.
14The applicant testified about the time he received a voice mail message from an employee of the respondent advising him that he had to pay certain court fees in cash. He testified that this was because his debit transaction for court fees had not gone through, likely due to his difficulty seeing the buttons on the debit machine. He testified that this occurred sometime around March 2010.
15The applicant submitted that he had not filed an Application with respect to this March 2010 allegation earlier because he had believed it to be a matter of federal jurisdiction, as it involved banks. He did not provide any evidence indicating that he had tried to pursue this allegation at the Canadian Human Rights Tribunal.
16The applicant testified that he received his Notice of Trial for the hearing of his Small Claims Court matter shortly after September 8, 2011. The Notice was in evidence at this hearing and it indicates that the Small Claims Court hearing would be held on December 9, 2011 in courtroom #2 on the first floor.
17The applicant wrote a letter to the Clerk of the Small Claims Court on November 17, 2011, citing the Code and stating that for the hearing he requires “provisions...for or a courtroom set up for a power point presentation in order to streamline trial and ease the burden on my vision”. He also requested that the respondent provide accommodation for his father in the form of closed captioning “due to his deafness”. He testified that he had a good deal of written material to go through at the hearing and that it would be impossible for him to do this without a large screen, as he suffers from a painful visual aura due to certain sensitivities and glaucoma and cataracts. He testified that the accommodation he was seeking was a projector to enable him to present his case so that it would be easier to read and so that he did not have to walk over to 10 witnesses in the course of the hearing to show them something in a book. He testified that he also has feet ailments.
18The applicant testified that when he was later at the courthouse filing papers in another matter, a woman came up to him and asked him if he knows how much closed captioning services cost. He testified that he answered that he did not know the cost, and that she “stormed away”. He also testified that he believes she asked him what he wanted and he said he wanted a projector in order to be able to project documents from his laptop.
19The applicant testified that when he arrived at the courthouse lobby at around 9:10 am on December 9, 2011, the scheduled date for the hearing of his action, he and his father walked around the courthouse looking in vain for a written notice indicating in which courtroom his matter would be heard. He testified that he only saw an old docket which did not list his matter. He testified that this walking was difficult for him as he has problems with his feet. He testified that he proceeded to the “Civil Desk, Court Services Division” and waited in line in order to make his inquiries. He testified that the woman behind the counter was chatting with the man in front of him in line, and he could hear that their conversation was not related to the work of the courthouse. He also testified that he believes that this man stayed in line to delay him as part of a conspiracy, as he saw this man later in the courtroom where his matter was being heard.
20The applicant testified that the woman behind the desk and the man in front of him continued to chat and he finally told the woman that he had a trial, he did not know where it was, and he also told her that he had a disability and had asked for visual aids. He testified that the woman behind the desk told him that the woman in charge of accommodation was not there that day.
21He testified that he and his father then turned back into the waiting room and saw the Deputy Judge assigned to his case and counsel for the other party conversing across from courtroom number 2. He testified that they then walked into Courtroom number 2, so he concluded that his matter was to be heard in that courtroom. He testified that this took place at 10 am or “shortly before”. He testified that he and his father followed them into that Courtroom. He testified he had a discussion with the judge and the opposing party’s counsel regarding the closed captioning for his father, and he testified that the judge resisted the closed captioning. He testified that eventually the judge relented and his father was allowed to make use of the closed captioning service. He testified that he did not ask the judge about the magnifying equipment for himself at that point, as the court was called to order.
22The applicant testified that when the hearing into his matter commenced, he did not see the projector or screen he had requested as an accommodation. He also indicated that based on previous dealings with court services personnel and personnel at the courthouse he felt they may not in fact make accommodation available to him and accordingly he made books of his documents in advance of the hearing date and brought them with him to the courtroom. He did not testify that they had denied him similar accommodation in the past, but he testified about what he believes are poor relations between himself and the court services division personnel. He submitted that due to past dealings with several individuals there, they are in collusion and there is a conspiracy against him. He testified that he made use of the books he had produced rather than insist upon the accommodation he had requested earlier. He also testified that he told the judge he had requested visual aids and that he did not see them, but that the judge “ignored the request” and he was “bulldozed into trial”.
23The 137 page court transcript of the December 9 , 2011 hearing was entered into evidence at the Tribunal hearing and indicates that there was a discussion involving the applicant, the judge and the opposing party’s counsel regarding whether the applicant’s father was a party, a witness or a spectator. The transcript reflects a discussion of whether closed captioning would be offered to the applicant’s father given the applicant’s indication that day that his father’s role was spectator only. It indicates that the applicant referred to the Code and submitted that his father should be permitted to use closed captioning services and that not to permit him to do so would be discriminatory.
24The court transcript also indicates that after a recess, the judge confirmed that the applicant’s father would be permitted to use the closed captioning services, and the following exchange ensued:
MR. HODKIN: One more thing, Your Honour. I never heard back about the other visual request I did, so what I have done is I’ve had a duplicate of this, the book made.
THE COURT: Okay, what, what other visual request?
MR. HODKIN: To have it put on the computer so I could show it. I also have a visual impairment. But I never heard, so what I did, was I had a duplicate, so I may be able to relate to the witnesses per tabs as you have and Mr. Hopkins so we can all look at the same thing without me running around the courtroom. The plaintiff’s book of evidence, I duplicated it again, so I may relate certain tabs to certain witnesses and therefore not, streamline the trial.
THE COURT: Okay.
MR. HOPKINS: That’s fine with me. I think that’s pretty standard.
THE COURT: Yeah, it’s the way to do it, other things?
MR. HODKIN: Thank you.
THE COURT: You have other things to say before we start?
MR. HODKIN: No, that was it.
THE COURT: Okay.
25The remainder of the transcript also shows that in questioning or cross-examining witnesses, the applicant referred them to details in various documents, including photos, emails, an unsafe building order, and letters. The applicant also made reference to a provision in environmental legislation. At one point, a witness produced a two and a half page document which the applicant indicated he had not seen before. The Deputy Judge called a 10 minute recess in order for the applicant to have an opportunity to review the document. After the recess, the following exchange took place:
THE COURT: Okay, so for record purpose, Mr. Hodkin, you have all the time to read the, look at the documents, that Mr…..
MR. HODKIN: Yes, I looked it over, yes.
THE COURT: …Jessop have brought to us. You don’t need more time, correct?
MR. HODKIN: No, I should be okay.
THE COURT: You okay?
MR. HODKIN: Yes.
26There is no indication in the transcript that the applicant ever indicated a difficulty with reading the documents being used in the hearing. Rather the transcript indicates that the applicant was very highly engaged in the proceedings, asking questions of the witnesses, making objection to questions asked by the other party’s counsel, responding to questions from the Deputy Judge, making submissions to the Deputy Judge regarding the relevance of his own questions, and other matters.
27At the hearing into this Application, the applicant took the position that the transcript of his December 9, 2011 hearing was inaccurate and suggested that it had been “crafted” to say what the Deputy Judge wanted it to say and that this was part of the collusion against him. He also stated that the transcript has been “edited by the deputy judge, per his liking”. He testified that in a previous matter, he had required a judge to recuse himself.
28With respect to the impact of the respondent’s alleged actions, the applicant testified that it has given him depression and anxiety and it made him feel demeaned. He testified that “they helped impede the case”.
29During the course of his evidence and submissions, the applicant spoke of other incidents and complaints he had made regarding Court Services Staff and indicates that this history is the reason the court personnel has a conspiracy against him.
30Additionally, through the course of his evidence and submissions, he indicated other legal channels he intends to pursue regarding things such as the outcome of his Small Claims Court action and whether the court services staff dealt with his request for accommodation in such a way as to violate his right to privacy.
31The applicant’s father gave evidence with the assistance of closed captioning services at the hearing of this Application. He stated that he and his son walked around the courthouse for around 10-15 minutes when they arrived there on December 9, 2011, but could not find where the trial was to be held. He corroborated the applicant’s evidence regarding waiting in line at the civil desk to obtain the whereabouts of the trial, and being required to wait for assistance there while a man, whom he later saw in the courtroom, spoke with the woman behind the civil desk. He testified that they waited for about 10 minutes. He testified that he and his son found the correct courtroom after leaving the counter area, as they saw the Deputy Judge and the other party’s counsel enter Courtroom number 2. He testified that there was a discussion regarding his need for closed captioning and that the reception was “very sour” and insulting. He testified, however, that the closed captioning was available to him through the trial. He also testified there was a discussion at the door of the courtroom involving his son, the Deputy Judge and the opposing party’s counsel, which he could not hear, but that it was about his son’s request for visual aids. He testified his hearing was not good, but he thinks he heard the Deputy Judge ask if his son knew how much it costs. He testified that no one ever offered the applicant the visual aids he had requested. He testified that at the beginning of the trial his son asked about the visual aids. He also testified that the Deputy Judge would not let his son question the witnesses as he is not a lawyer. He testified that the incineration of industrial waste, an allegation relating to the matter in the Small Claims Court claim, has damaged his son’s health and mental outlook.
32The respondent’s first witness was Tammy Humphries, supervisor of Court Operations in St. Catharines. At the time of the applicant’s Small Claims Court action, she was the acting supervisor of Court Operations in Welland. She testified that at that time, she was also the accessibility coordinator there. In that role, she testified that she is the primary contact for any accessibility requests or accommodation and works to fulfil the requests for equipment or whatever else might be required if it is something they do not have on site.
33Ms. Humphries testified that she received the applicant’s November 17, 2011 letter of request for accommodation from her staff. She testified that she then contacted her boss, the manager of court operations, told her of the request, and contacted the superior court judge’s secretary with regard to the request for the screen and projector, in order to make them aware of the request. She testified that the requested accommodation was not going to be denied.
34Ms. Humphries identified a chain of emails from November 28, 2011 to November 30, 2011, in which Susan Secord communicates with an individual at a reporting and captioning services company to obtain real time captioning. It also includes an email dated November 30, 2011 from Susan Secord to Tammy Humphries, asking her to have someone check with Mr. Hodkin in order to be sure that the right equipment is available. Finally, there is an email from Ms. Humphries to Susan Secord on November 30, 2011 in which she states as follows:
I spoke to Mr. Hodkin in person on Monday when I saw him filing something at the counter. He says the captioning is for his elderly father. So I think he can view it on the screen that the captionist will have. Mr. Hodkin also asked for equipment to display a power point presentation. I clarified his needs with him, which will be a projector and screen. I contacted Gabe to reserve the media cart and she says she will take it to the courtroom, hopefully the day before. He will have to set up his laptop on the equipment himself, I presume.
35In her testimony, Ms. Humphries characterized her above-noted interaction with Mr. Hodkin at the counter as a confirmation that they had received his request and were working on it. She identified Gabriel Daigle as the Superior Court secretary in Welland, who looks after booking the screen and the media cart which contains the projector. In cross examination, she denied having asked the applicant if he knows what closed captioning costs.
36She also identified a July 13, 2012 email from Gabriella Daigle, on which she was copied, which indicates that the request for a media cart was logged into Ms. Daigle’s calendar for December 9, and that it is her normal practice to call the requester in advance to let them know it is up to them to arrive early for set-up, as that is not done by court personnel. It indicates that she vaguely recalled leaving a voice mail for Mr. Hodkin to that effect.
37Ms. Humphries also testified that there was a small post-it note on the front of the applicant’s Small Claims Court file, indicating “need screen and projector” and that there had been a request for real time captioning. She testified that deputy judges for Small Claims Court only come to the courthouse the morning of court, and they do not get the files prior to that. Accordingly, she testified, the note is placed on the front of the file in order to alert the deputy judge to the fact that there were accessibility accommodations being made that day.
38Ms. Humphries also identified court dockets, including a docket for Courtroom number 2 listing the applicant’s Small Claims Court matter. She testified that court staff normally posts the dockets on the door of the courtroom in the morning, before the court starts. She testified that sometimes staff arrive half an hour before their court, and that the docket may only be posted anywhere from half an hour to just before the trial takes place. She also testified that there are dockets posted at the entrance to the counter services area, either late afternoon the day before the trial or at 8:30 the morning of the trial. She testified that each courtroom has its own page or pages and that if there is more than one page for a courtroom, the pages are posted on top of each other and they are not spread out.
39Ms. Humphries also testified that she was at the courthouse on December 9, 2011, but that no one asked her where their matter was to be heard that day and that no staff asked to speak to her about an upset member of the public.
40Ms. Humphries testified about the payment of court fees and debit payment machines.
41Finally, Ms. Humphries testified that she has not been part of a conspiracy against the applicant and that she is unaware of any such conspiracy.
42In cross-examination, the applicant asked Ms. Humphries questions about why a judge would have been assigned to his matter when the judge was in a professional relationship with the other party’s counsel, asked her questions about accommodation for hearing loss and his father, questions about privacy issues and training given to the court staff with respect to accommodation policy.
43The respondent also called the court reporter, Pauline Smit, who produced the above-noted transcript, as a witness. She testified that she has been a court reporter since 2009 and that on December 9, 2011, the applicant’s Small Claims Court matter was the first court she attended that day. She identified the transcript as one she had typed and identified the accompanying July 16, 2012 affidavit, signed by her, in which she certifies that the transcript is a “true and accurate transcript of the recording of” the applicant’s Small Claims Court matter on December 9, 2011. She testified that she never changes or tampers with transcripts.
44Ms. Smit testified that she recalled that there was a media cart in the courtroom December 9, 2011. She could not recall if she had wheeled it in or if someone else had. She testified that it was at the left side at the front of the courtroom, and that the screen was just outside the door.
45Ms. Smit also testified that she believes the applicant was made aware of the fact that the media cart was there for his use. The only discussion she could locate in the transcript regarding the request for accommodation for visual needs was as quoted above. She testified that she did not recall the conversation, but had a recollection that he was made aware that it was there for his use, either at a break or before court started, periods which would not be reflected in the transcript. She testified that the transcript only reflects what happens while the court is in session.
46Ms. Smit also testified that she is also a clerk registrar and that she may have posted the docket for Courtroom number 2 later that day than she would ideally like, due to the fact that there was an adjournment of a matter at 9 am. She testified that the docket was ultimately posted and that the hearing of the applicant’s Small Claims Court matter took place in Courtroom number 2.
47Ms. Smit testified that she is not part of a conspiracy against the applicant to affect the outcome of his trial, nor is she aware of any such conspiracy.
48In cross-examination Mr. Hodkins asked Ms. Smit why she did not find it appropriate to speak up when he said he was supposed to get assistive devices, to say that the equipment was there. She testified that a court reporter does not speak up during court very much at all.
The allegation from March 2010 – Debit Payment
49Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) reads as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
50As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.
51The Tribunal has no authority to accept delays beyond 12 months, unless good faith has been established. This is because the Tribunal’s power to hear and determine human rights Applications is based on the Code and the Code clearly states, in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith.
52The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner.
53As noted, the applicant indicated that he did not pursue this allegation earlier because he believed it to relate to a matter under federal jurisdiction. He has not, however, indicated any steps he took to assert his rights in that jurisdiction.
54In dealing with requests that Applications be considered outside the one-year limitation period the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council 2009 HRTO 241. The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their Application within one year, when they seek to pursue a human rights claim. It is clear that the applicant understood that there may have been a breach of rights protected by Human Rights legislation, but he took no timely steps to pursue this matter either at the Canadian Human Rights Tribunal or the Ontario Human Rights Tribunal. I have considered the applicant’s explanation for the delay and I find that the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was not incurred in good faith as required under s. 34(2) of the Code.
55While the applicant did not make submissions with respect to whether the March 2010 allegation relates to a series of incidents, I do not find that this allegation is timely pursuant to section 34(1)(b). The Tribunal has found as a general rule that “a gap of more than one year between incidents in a series would in most cases interrupt the series”, see Chintaman v. Toronto District School Board, 2009 HRTO 1225. I do not find that there is any reason to depart from this general approach, and I find that as the next allegations recounted in this Application relate to events more than one and one half years later, the March 2010 allegation does not form part of a series of incidents and cannot proceed as timely pursuant to section 34(1)(b).
56Given the finding that the delay was not incurred in good faith, and that the March 2010 allegation does not form part of a series of incidents with the remainder of the allegations, it is not necessary for me to consider the question of whether anyone has been substantially prejudiced by the delay.
57I find that the circumstances in subsection 34(2) do not apply to the facts before me. This allegation cannot proceed under subsection 34(1) of the Code and is therefore dismissed.
Allegation of a conspiracy
58I note that the applicant has submitted that several of the respondent’s employees are engaged in a conspiracy against him and that the alleged discriminatory actions by the respondent were part of that conspiracy. The applicant makes this assertion on the basis of the fact that he has had disagreements and has made complaints about the respondent’s personnel in the past. I do not find that this, without more, establishes that there was a conspiracy against the applicant and I do not find that this assists the applicant in establishing his allegations of discrimination contrary to the Code on a balance of probabilities.
Allegation relating to information regarding the location of the hearing
59I do not find that the respondent discriminated against the applicant by forcing him to wander the courthouse on December 9, 2011 to find the location of his hearing.
60There was no dispute that the applicant received his Notice of Hearing shortly after September 8, 2011. The Notice of Hearing stated that the trial of his Small Claims Court matter would be held in Courtroom number 2. The trial was in fact held in Courtroom number 2. By the time the applicant arrived at the courthouse on December 9, 2011, the respondent had already advised him of the location of his hearing.
61Additionally, the applicant’s evidence was that he and his father arrived at the courthouse lobby at approximately 9:10 am, and that they proceeded to walk around looking for an indication as to which Courtroom had been assigned. Unsuccessful, they went to the counter area where they waited for service for what the applicant’s father testified was approximately 10 minutes. Both the applicant and his father testified that upon leaving the counter area, they saw the judge and lawyer for the other party enter Courtroom 2. They do not indicate that they looked again for a posted docket. In her evidence, Ms. Smit, the individual responsible for posting the dockets listing cases assigned to each courtroom, indicated that she may have posted the docket outside Courtroom 2 later than she would have liked, but that she did post it outside that courtroom that day. I find it more likely than not that when he and his father arrived, 50 minutes in advance of the scheduled time for the civil matter, the docket had not yet been posted. I can appreciate that the applicant was likely anxious to find his assigned courtroom as soon as possible. However, I am not persuaded, on a balance of probabilities, that the fact that the docket was not yet posted listing his matter, especially as he had received notification in the Notice of Hearing that it would take place in Courtroom number 2, establishes that the respondent failed to post a docket outside Courtroom 2 that day or that it in any way attempted to hide the location of the applicant’s civil trial from him, or required him to walk around the entire courthouse to find the trial. I do not find that the respondent discriminated against the applicant by causing him to walk around the courthouse looking for the correct courtroom.
Allegation regarding failure to provide adaptive equipment
62The applicant alleges that the respondent discriminated against him contrary to the Code by not providing a projector and screen for his hearing on December 9, 2011.
63In order for the applicant to establish discrimination contrary to the Code, he must establish as follows:
That he is a member of a group protected by the Code;
That he was subjected to adverse treatment; and
That his disability was a factor in the alleged adverse treatment.
See for example, Shaw v. Phipps, 2012 ONCA 155.
64For the purposes of this Decision, I will accept, without finding, that the applicant has a disability, and therefore that he is a member of a group protected by the Code.
65In turning to the second requirement for a finding of discrimination contrary to the Code, however, I do not find that the applicant has demonstrated on a balance of probabilities that he was subjected to adverse treatment and accordingly I do not find that he has established that the respondent discriminated against him contrary to the Code.
66The applicant testified that prior to the hearing date for his Small Claims Court matter, someone approached him when he was at a counter at the courthouse and spoke to him about his accommodation request. He testified that she asked him what he wanted and he advised her that he wanted a projector in order to be able to project documents from his laptop. This is consistent with the pre-hearing email chain between Susan Secord and Tammy Humphries, in which Ms. Humphries indicates that he asked for a projector and a screen, as well as with Ms. Humphries’ oral testimony in which she indicated that her pre-hearing interaction with the applicant at the courthouse was confirmation for him that they had received his request for accommodation (for himself and his father) and were working on it. I find that in this pre-hearing interaction between Ms. Humphries and the applicant, the respondent did respond to the applicant’s request for accommodation and indicate to him that it was being addressed.
67Though the applicant has testified that he did not see the media cart in the hearing room on December 9, 2011, I accept the evidence of the court reporter, Pauline Smit, that the media cart was in Courtroom number 2 that day and was available for the applicant to use. I note that her evidence is consistent with the July 13, 2012 email from Gabriella Daigle who is responsible for booking the screen and media cart at the courthouse, in which she indicates that the request for a media cart for December 9, 2011 was logged into her calendar.
68Though the applicant disputes the accuracy of the transcript of the court proceedings December 9, 2011, and asserts that it has been edited as part of a broader conspiracy against him, as noted above I do not find that there is evidence to establish a conspiracy against the applicant and I see no reason to question the accuracy of the transcript prepared by the court reporter, Ms. Smit. I note that Ms. Smit is a professional court reporter, accustomed to recording proceedings verbatim, and I do not find that Ms. Smit has an interest in these proceedings. Accordingly, I accept her evidence that the transcript is a true record of the proceedings December 9, 2011.
69Upon review of the transcript of the hearing December 9, 2011, while the applicant mentioned his request for accommodation to the presiding Deputy Judge, at the same time he indicated that he had not heard back about his request, and “so” had made other arrangements. When the Deputy Judge asked if he had anything further to say before the hearing commenced, he stated that he did not. In effect, the applicant advised the court that he was prepared to proceed without the adaptive equipment he had requested as he had made his own satisfactory arrangements. The transcript does not indicate that there was any point where the applicant said or did anything which would indicate otherwise. The applicant participated actively in the hearing on December 9, 2011 and made frequent reference to written materials in questioning and cross examining witnesses. In fact, when presented with a new document to review and when questioned by the Deputy Judge about whether he had had sufficient opportunity to review it, he did not indicate any difficulty or concern related to a visual disability. Further, upon review of the transcript, the applicant does not appear to have been reticent in expressing his views assertively or in engaging in discussion and pressing his points with the presiding Deputy Judge. He did not, however, at any point indicate that he was at a disadvantage for lack of accommodation, but rather, presented himself as an individual fully capable of participating in the proceedings. This was consistent with the applicant’s behaviour on the first day of the hearing of this Application, as noted above.
70During the course of the hearing of this Application, including the first day, when the requested accommodation was not available, the applicant participated actively. On the final day of hearing, during the course of closing submissions by counsel for the respondent, he expressed at numerous times his disagreement with the respondent’s counsel’s characterization of the facts. I had to remind him more than once that he would have an opportunity to speak in Reply, but at one point he stood up to announce he was leaving, and indicating that he did not have confidence in the process. After I advised him that if he left, he risked having his matter dismissed as abandoned, he took his seat and continued to participate for the remainder of the hearing, which occurred at the conclusion of his Reply. Throughout the hearing in this matter, the applicant was animated and assertive and did not appear at any point to be reticent to express himself or state his preferences or needs. As noted above, the first day was adjourned early, at his request, due to his father’s health. Again, this is consistent with what a review of the transcript indicates occurred on December 9, 2011. I have no hesitation in concluding that if the applicant was suffering a disadvantage in the course of his December 9, 2011 hearing due to not using the adaptive equipment, he would have indicated as much to the Deputy Judge, especially when the Deputy Judge asked him if he had anything further he wished to discuss at the commencement of the hearing and later during the course of the hearing when the Deputy Judge inquired into whether he had had a sufficient opportunity to review a new written document.
71Accordingly, I am not persuaded on a balance of probabilities that the applicant suffered a disadvantage in the presentation of his case at Small Claims Court on December 9, 2011.
72For all these reasons, I am not persuaded that the respondent discriminated against the applicant contrary to the Code by denying him adaptive equipment accommodation and the allegation is dismissed.
73For all of these reasons, this Application is dismissed.
Dated at Toronto, this 24th day of November, 2014
“Signed by”
Maureen Doyle
Vice-chair