D.H. v. The Governing Council of the Salvation Army in Canada, 2014 HRTO 171

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.H.

Applicant

-and-

The Governing Council of the Salvation Army in Canada and The Good Shepherd Centre of Hamilton

Respondents

INTERIM DECISION

Adjudicator: Daniel Randazzo

Date: February 5, 2014

Citation: 2014 HRTO 171

Indexed as: D.H. v. The Governing Council of the Salvation Army in Canada

APPEARANCES

D.H., Applicant ) Self Represented

Her Majesty the Queen in Right of Ontario, ) Ms. Elizabeth King, Counsel as represented by the Minister of Housing ) and Municipal Affairs, Former Respondent )

Her Majesty the Queen in Right of Ontario, ) Mr. Ajay Ramkumar, Counsel as represented by the Minister of Community ) and Social Services, Former Respondent ) )

The Governing Council of the Salvation ) Mr. Blair McCreadie, Counsel Army in Canada, Respondent )

The Good Shepherd Centre of Hamilton, ) Ms. Sabatina Vassalli, Counsel Respondent )

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”), on February 22, 2013 alleging discrimination with respect to housing and goods and services on the basis of disability and reprisal.

2By Case Assessment Direction (“CAD”) dated March 14, 2013, the Tribunal, on its own initiative, directed that a Summary Hearing be held in this matter by teleconference to determine, as the Application relates to the respondents, Her Majesty the Queen in Right of Ontario, as represented by the Minster of Housing and Municipal Affairs (“MHMA”) and Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services (“MCSS”), whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect of success.

The applicant’s materials filed prior to the summary hearing

3Prior to the summary hearing the applicant filed a request seeking to adjourn the summary hearing. The applicant stated that he did not feel "fully capable" of proceeding, but did not provide any medical evidence or support. I note that the matter was originally scheduled for summary hearing on October 22, 2013 but was adjourned at the request of the applicant with the consent of the other parties. The matter was then rescheduled for January 7, 2014.

4The Tribunal’s Practice Direction on requests to adjourn or reschedule provides as follows

The HRTO discourages requests for adjournments outside the 14-day period to request re-scheduling of a Hearing, described above. Requests for adjournments, particularly at the last minute, are significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

5Although illness can be a reason the Tribunal will grant a last minute request to adjourn, in this matter the applicant made a general statement that he was not well but did not provided any medical evidence to support his request. The request was therefore denied.

6A summary hearing was held via teleconference on January 7, 2014. The applicant participated and was self-represented. Each of the respondents participated and was represented by counsel.

7During the course of the summary hearing the applicant conceded that there was no reasonable prospect of success with respect to the respondent MHMA. Based upon this concession and with the agreement of all parties, I find that there is no reasonable prospect of success as this matter relates to the MHMA and I therefore dismiss the Application as it relates to the MHMA.

8I have concluded that the Application has no reasonable prospect of success as it relates to the MCSS and dismiss the Application as it relates to the MCSS.

BACKGROUND

9The applicant has raised several allegations concerning his treatment at various shelters. Most of the shelters fall under the authority of the respondent The Governing Council of the Salvation Army in Canada (“Salvation Army”). The applicant complains of mistreatment at one shelter which falls under the authority of the Good Shepherd Centre of Hamilton (“Good Shepherd”).

10By way of example, the applicant alleges that on February 15, 2012 he was refused shelter at the Cawthra Road Shelter due to his disability and his use of, what he describes as, medical marijuana. He states that he spent five days on the street and eventually found shelter at the Lighthouse Shelter in Oakville, Ontario. He spent a night there and was eventually refused shelter and arrangements were made with the Good Shepherd in Hamilton, Ontario. After spending one night there he was again removed for a similar reason – the use of marijuana.

11The applicant says he spent another couple of days on the street and eventually found shelter at the Wilkinson Road Shelter. He pleads that he was forced to smoke his marijuana off property on the side walk where eventually he was confronted resulting in a physical confrontation for which he was evicted.

12Throughout the course of the next few days the applicant found shelter in other homes but continued, in his belief, to face discrimination due to his disability and need for medical marijuana.

13The applicant argued that, while the various shelters are not owned by MCSS, MCSS funds the shelters. The applicant argued that because the MCSS administers and funds the programs, the MCSS is responsible for the alleged acts of discrimination committed by the shelters and their respective employees. The applicant also argued that employees of the MCSS are employed at the various shelters. The applicant argued that MCSS was responsible for the alleged discriminatory acts because the MCSS put the administration of the programs in the hands of a group of people who have acted improperly.

14I heard from each respondent. The MCSS stated that the individuals working at the shelters are not employees of the MCSS. The MCSS objected to the applicant’s argument with respect to “funding” being the link or nexus between the actions of the shelters and the MCSS on the basis that this allegation was not pled in the Application. The MCSS argued that the MCSS does not set the shelters’ policies and that funding is not sufficient to create a link or nexus to the Code. The MCSS added that no employees of the MCSS were implicated and that funding on its own was insufficient to anchor the MCSS to the claim.

15The Salvation Army and Good Shepherd were in agreement that the Application should be dismissed against the MCSS.

16In reply, the applicant agreed that employees of MCSS were not employed at the shelters, however the applicant maintained his position that because the MCSS is responsible for the funding of the shelters, it was therefore responsible for the actions of the shelters.

DECISION

17The Summary Hearing was held to determine if all or part of the Application should be dismissed against the MCSS on the basis that there is not a reasonable prospect of success.

18In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing 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 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.

19The thrust of the applicant’s argument is that because the MCSS provides funding to the shelters, the MCSS is responsible for the acts of the shelters and their respective employees. At its highest, the applicant essentially argues that the MCSS, through its funding, controls or operates the shelters. However, the applicant acknowledges that no employees of the MCSS were employed by the shelters or implicated in the alleged discriminatory acts. In Forde v. Elementary Teachers’ Federation of Ontario (“Forde”), 2011 HRTO 1389, at para. 17, the Tribunal noted that there must be a basis beyond mere speculation or suspicion to establish a link between a ground alleged under the Code and a respondent’s actions. In this case, funding is not sufficient to draw a link between the alleged misconduct and the MCSS. The applicant has not produced any document or material which could substantiate, on a balance of probabilities, that the MCSS controls or operates the shelters. I therefore find that the Application should be dismissed as it relates to the MCSS on the basis that there is no reasonable prospect of success.

20As noted above, the applicant conceded that the Application should be dismissed against the MHMA on the basis that there is no reasonable prospect of success.

Order

21The Application is dismissed as against the respondent Her Majesty the Queen in Right of Ontario, as represented by the Minister of Housing and Municipal Affairs and as against the respondent Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services. The style of cause is amended accordingly.

Next Steps

22The applicant filed a Request for Order During Proceedings (“RFOP”) on January 3, 2014 seeking to amend his Application seeking to add further allegations. Following the summary hearing, the applicant filed another RFOP on January 8, 2014 seeking to remove a respondent and seeking to make, what appear to be, housekeeping amendments to his Application. The applicant filed a second RFOP, dated January 8, 2014 seeking to amend his Application by adding further allegations and by seeking to add additional respondents.

23The respondent, Good Shepherd, filed a RFOP dated December 3, 2013 seeking to have the Application dismissed on the basis that there is no reasonable prospect of success. The applicant opposed the Good Shepherd’s RFOP.

24The respondent, Salvation Army, on January 23, 2014 filed a response to the applicant’s RFOPs and requested procedural orders of their own. The Salvation Army was in support of the Good Shepherd’s request for a summary hearing seeking to dismiss the Application on the basis that there is no reasonable prospect of success.

25The RFOPs filed by the parties, including the procedural orders requested by the respondent Salvation Army, will be dealt with by way of a separate decision.

26I am not seized.