HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Louise Heyens Applicant

-and-

Guelph Community Health Centre, Karan Mann-Bowers, Lloyd Bowers, Christina Mann, Nancy Mykitschak, Karrie Cumming, Laurie Malleau, Kate Vsetula, Jerry Mykitschak, Lorna Schwartsentruber, Guelph & Wellington Task Force for Poverty Elimination and Association of Ontario Health Centres Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: April 7, 2014 Citation: 2014 HRTO 467 Indexed as: Heyens v. Guelph Community Health Centre

APPEARANCES

Mary Louise Heyens, Applicant Self-represented

Guelph Community Health Centre, Lloyd Bowers, Laurie Malleau, Jerry Mykitschak, Karan Mann-Bowers, Nancy Mykitschak, Karrie Cumming, Christina Mann and Kate Vsetula, Respondents Andrew Zabrovsky, Counsel

Association of Ontario Health Centres, Respondent Aida Abraha and Yola Grant, Counsel

BACKGROUND

1This Application, filed on July 17, 2013, alleges discrimination against the applicant with respect to her volunteer work because of disability, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated August 30, 2013 (the “CAD”), the Tribunal, on its own initiative, directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The Tribunal advised the parties that there were three reasons why the Application may not succeed. One, the allegations may be untimely; two, the applicant may be unable to establish a link between the alleged discrimination and a prohibited ground of discrimination; and three, the applicant may be unable to establish intention on the part of the respondents to reprise against her. The respondents were advised that they did not need to file Responses to the Application.

3In the CAD, the applicant’s attention was directed to s. 34 which states, in part:

34(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.

4The summary hearing was conducted by teleconference on January 29, 2014.

Summary Hearing Process

5The 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.

6The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

7The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment she experienced. 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.

8However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant’s belief that she has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support her allegations, there are no findings made at the summary hearing stage in relation to that evidence.

9The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the application or in the Code’s reprisal provision. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show reprisal or discrimination on the basis of one of the grounds alleged in the Code.

10Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this case as set out in the Application.

The Facts

11The applicant began volunteering with the respondent Guelph Community Health Centre (the “Centre”) in 2009 as a volunteer truck driver. In June 2010, the applicant received her Certificate of Completion for the Healthy Living Peer Leader Training Program with the Centre. She was subsequently assigned to the volunteer position of shoe tracker for the shoe recycle program. The applicant asserts that she was told the volunteer work would lead to part-time paid employment with the Centre.

12On November 3, 2010, the applicant was banned from the Centre for stealing a bag of milk.

13In February 2011, the applicant was found to be a person with a disability under the Ontario Disability Support Program.

14On May 23, 2012, the applicant asked the Centre to review its decision to ban her from the Centre. By letter dated August 2, 2012, the applicant was advised that the Centre had reviewed her request and its decision to deny the applicant access to the Centre’s premises remained in effect.

15On June 23, 2013, the applicant volunteered at an annual Local Food Fest. The applicant approached the volunteer tent to get some refreshments and was told by the individual respondent Christina Mann, a program coordinator with the Centre, the tent was only for Centre volunteers and that she was prohibited from entering it.

16During the summary hearing, the applicant referred to a medical note from her physician dated January 19, 2014 which states the applicant has been diagnosed with various mental health problems including post-traumatic stress disorder and depression. The note states the applicant was very symptomatic with these issues in 2010 and in addition, was suffering financial hardship. The physician expresses the opinion that these issues were causative factors in regard to the applicant’s behaviour in 2010, referring to an incident in 2010 where the applicant took a bag of milk from the volunteer kitchen without authorization.

ANALYSIS

The Centre and the Individual Respondents

17The Centre and its current and former employees (many of the individual respondents) seek a dismissal of the Application because they submit it is out of time. They assert the event being complained about relates to the applicant being banned from the Centre in November 2010. As the Application was not filed until July 17, 2013, they submit it is outside of the one-year time limitation and should be dismissed on that basis.

18The applicant’s complaints involve the ban from the Centre in November 2010 and the ban from the refreshment tent in June 2013. The applicant asserts there is a link between her disability and the behaviour which led to the original ban - stealing a bag of milk. The applicant refers to the note from her physician to support this link.

19There are three events being complained about in the Application. The original ban in November 2010, the Centre’s refusal to lift the original ban in August 2012 and the ban from the refreshment tent in June 2013. The Centre states all three events relate to the original ban and as such, the Application is untimely. The applicant states her allegations comprise a series of events and the Application is timely for that reason.

20Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents.

21I do not accept the applicant’s submission that the August 2, 2012 letter from the Centre was part of a series of incidents. The August 2, 2012 letter simply confirmed the Centre’s decision to ban the applicant from its premises in November 2010. The incident being complained about is the ban in November 2010. The applicant filed her Application on July 13, 2013, more than two and one-half years later. As such, the Application is untimely relating to the November 2010 ban.

22The Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for her failure to pursue her rights under the Code in a timely manner.

23I do not find that the applicant has established a good faith reason for the delay in filing her Application. She states she was unaware of the one-year time limitation and believed she should try to resolve the ban herself before coming to the Tribunal. Although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must establish that she had no reason to make inquiries about her rights. In this case, the applicant made many attempts to get the Centre to lift the ban. She has failed to provide any explanation for why she did not, or could not have, made inquiries about her rights in order to ensure that her Application was filed in a timely manner.

24I therefore find the applicant has failed to establish her delay in filing the Application was incurred in good faith. In light of this finding, it is not necessary to consider the question of prejudice. The applicant’s complaint relating to the November 2010 ban from the Centre is dismissed for delay.

25This leaves the incident of June 23, 2013 when the applicant was banned from the volunteer tent at the annual Local Food Fest. The applicant alleges that she was banned from the volunteer tent by the individual respondent Christina Mann.

26The Centre submits the applicant was banned from the volunteer tent because it was an extension of the original ban in November 2010. The Centre submits further that the applicant was banned from the tent because she was volunteering for another organization. The Centre submits there is no link between that reason and the applicant’s disability.

27The applicant has provided the letter from the Centre imposing the November 2010 ban. It states the applicant is banned from accessing the Centre’s premises at 176 Wyndham Street in Guelph, Ontario. There is an issue as to whether the volunteer tent at the annual Local Food Fest in June 2013 is covered under the November 2010 ban, an issue that is properly resolved at a hearing on the merits of the Application.

28The applicant alleges the Centre knew of her post traumatic stress disorder and that it should have accommodated her disability with a lesser sanction. She states the Centre over-reacted and discriminated against her. The Centre and its employees deny that it was aware of the applicant’s disability at the time of the ban. This factual dispute cannot be resolved at the summary hearing stage.

29At this point the applicant has satisfied me that she may be able to establish a link between the banning that took place on June 23, 2013 and the ground upon which she made the claim. I cannot find, therefore, that there is no reasonable prospect that the June 23, 2013 allegation will succeed. For this reason, the Tribunal will continue to process the complaint relating to the ban on June 23, 2013.

30The Centre and the individual respondent Christina Mann must file a Response to this complaint by May 7, 2014. Although the November 2010 ban is not proceeding as an allegation of discrimination, the Centre may include background information relating to the November 2010 ban if it is relevant to the ban in June 2013.

31There are no allegations of discrimination concerning the remaining individual respondents. They are simply part of the applicant’s narrative. As such, they are removed as respondents to this Application.

32One final note. The applicant asserts the individual respondent Karan Mann-Bowers retaliated against the applicant because she filed a human rights application against the City of Guelph in 2007 and Ms. Mann-Bowers was a candidate for the Guelph NDP in the 2007 provincial election. There are no facts pled to support any claim of reprisal, and the connection between the City of Guelph and Ms. Mann-Bowers is too tenuous to support such a claim. The allegation of reprisal is also dismissed.

The Association

33The Association of Ontario Health Centres’ (the “Association”) membership is restricted to Ontario corporations engaged in the delivery of primary health care. Its membership includes Ontario’s 75 Community Health Centres. The Association states it has no control over the internal operations of its member agencies. The applicant has not contradicted this statement.

34The Association submits the applicant has not pled any facts that would support a claim that it breached the applicant’s rights under the Code. During the summary hearing, the applicant stated she contacted the Association to help her communicate with the Centre. In the Application, she states the Association deliberately disrupted her volunteer work, but there are no facts alleged in the Application to support this broad statement.

35I agree with the submissions of the Association that the applicant has not pled any facts that would support her claim that the Association discriminated against her. There is only one reference to the Association in the Application and it relates to the bald statement that the Association interfered with the applicant’s volunteer work. In the absence of any facts to support this assertion, the Association is removed as a respondent to this Application.

The Guelph & Wellington Task Force for Poverty Elimination

36In the Application, the applicant states she complained to the Guelph & Wellington Task Force for Poverty Elimination (the “Task Force”) about not being selected to participate in the “Advance Your Voice Speakers Bureau”. There are no facts alleged in the Application as to why the applicant believes she was not selected to participate in the event and whether it had anything to do with a prohibited ground of discrimination. In the absence of any facts to support a claim of discrimination, the Task Force is removed as a respondent to this Application.

ORDER

37The Tribunal makes the following orders:

a) The allegations relating to the November 2010 ban and the refusal to lift the ban in August 2012 are dismissed for delay;

b) The allegation relating to the ban on June 23, 2013 will continue through the Tribunal’s process;

c) The Respondent Centre and the individual respondent Christina Mann will provide a Response to the June 23, 2013 allegation by May 7, 2014;

d) The remaining individual respondents are removed as respondents to the Application;

e) The Association is removed as a respondent to the Application; and

f) The Task Force is removed as a respondent to the Application.