HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Grant Hutchinson
Applicant
-and-
York University
Respondent
DECISION
Adjudicator: Jennifer Scott
Indexed as: Hutchinson v. York University
APPEARANCES
Grant Hutchinson, Applicant
Self-represented
York University, Respondent
Kate McNeill-Keller, Counsel
BACKGROUND
1This Application, filed on March 13, 2013, alleges discrimination with respect to contracts because of disability, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2By Interim Decision dated July 19, 2013, 2013 HRTO 1263 (the “Interim Decision”), the Tribunal 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 are two reasons why the Application may not succeed. One, the allegations may be untimely and two, the applicant may be unable to establish a link between the alleged discrimination and a prohibited ground of discrimination.
3In the Interim Decision, 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 February 10, 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 he 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 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 he has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support his 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 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
11In September 2011, the applicant was a student at Seneca College. His Seneca College program was located at York University and he lived in a York University apartment.
12On September 19, 2011, the applicant was awoken by the police and taken to the hospital for a mental health assessment because a neighbour had accused the applicant of making a death threat.
13On February 23, 2012, the applicant attended a Public Safety Open Forum (the “Open Forum”) at York University. At the meeting, the applicant complained that York University security had led the police to his apartment, and had entered the apartment with them. He complained further that he had been assaulted, taken to the hospital and humiliated.
14On March 1, 2012, York University issued a trespass notice to the applicant following his comments at the Open Forum.
15On September 13, 2012, the applicant was charged with criminal harassment in relation to alleged threats that were made to the Senior Housing manager for York University. Legal Counsel for York University compiled information about the applicant for a Form 2 under the Mental Health Act. The Form 2 was issued by a Justice of the Peace and given to the police and the Crown Attorney for the bail hearing on the criminal harassment charge.
16The applicant alleges that he was discriminated against by York University when:
The police removed the applicant from his apartment on September 19, 2011, handcuffed him and took him to the hospital where he was constrained until he was discharged six hours later.
York University issued a trespass notice on March 1, 2012 preventing the applicant from attending classes and accessing transportation, food and other services at the university.
The applicant was arrested for criminal harassment on September 13, 2012 and subject to a Form 2 based on information provided by York University that he was a safety risk.
17The Application contains further allegations against the hospital, the police, the Crown prosecutor, and Seneca College. These allegations are outside of the Tribunal’s jurisdiction because they do not involve the named respondent in this Application, York University.
ANALYSIS
September 19, 2011
18The applicant states that on September 19, 2011, the police banged on the door to his apartment. The applicant opened the door wearing only boxer shorts. The applicant was informed that a neighbour had accused the applicant of making death threats. The applicant explained to the police that he had followed proper procedures relating to noise complaints involving the neighbour. The applicant states the police refused to listen to his explanation. Instead, the police officers asked the applicant if he was on medication, if he had eaten, and requested his name, date of birth, age and cell phone number. The police officers then apprehended the applicant under the Mental Health Act because he had a history of depression, and removed him from his apartment in hand-cuffs. The applicant was taken out of the apartment building, placed in a police cruiser and driven to the hospital where he alleges he was physically constrained and medicated.
19The applicant’s complaint on September 19, 2011 involves the conduct of the police. The applicant asserts the police officers refused to hear his explanation concerning the threat he was alleged to have made and instead, asked him if he was on medication. Importantly, it was the police officers who apprehended the applicant under the Mental Health Act and removed him from his apartment in handcuffs, dressed only in his boxer shorts. There are no allegations concerning York University security in the Application other than they attended at the apartment with the police.
20During the summary hearing, the applicant stated York University security fed the police defamatory information. There is no factual basis in the Application for this bald assertion.
21There are no facts set out in the Application that would support a claim of discrimination against York University security. It is not discriminatory for York University security to give the police access to an apartment building when they have been called. The applicant admits that he opened his apartment door to the police. In the absence of any allegations of discrimination against York University security, the September 19, 2011 allegation has no reasonable prospect of success and it is dismissed on this basis. In light of this finding, it is not necessary to address the submission of York University that the September 19, 2011 allegation is untimely.
March 1, 2012
22On February 23, 2012, York University held the Open Forum. The applicant attended the Open Forum and raised his concerns relating to the incident on September 19, 2011. During the summary hearing, the applicant stated that he told the people attending the Open Forum that York University security had entered his apartment with the police. He was then assaulted, taken to the hospital and humiliated. When the applicant asked a York University manager what would be done, he was told the applicant’s case was currently before the Landlord and Tenant Board.
23On March 1, 2012, the applicant received a trespass notice from York University following his comments at the Open Forum. The applicant asserts that as a result of the trespass notice, he was denied an education and other services at York University, including transportation and food.
24Section 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 the respondent.
25I do not find that the incidents of September 19, 2011 and March 1, 2012 are part of a series of events because they do not involve the same parties. The September 19, 2011 incident involved the police, not York University (see my earlier finding). As such, the March 1, 2012 incident must be examined on its own in order to determine if it is timely.
26In the Application, the applicant complains about the trespass notice issued by York University on March 1, 2012. Although York University clarified the terms of the trespass notice in a letter dated March 13, 2012, the clarification does not change the fact that the trespass notice was issued on March 1, 2012.
27The applicant filed his Application with the Tribunal on March 13, 2013. On its face, the complaint relating to the trespass notice is out of time. Although the applicant continued to experience the effects of the trespass notice after March 1, 2012, the incident of discrimination occurred on March 1, 2012. This is consistent with the Tribunal’s decision in Mafinezam v. University of Toronto, 2010 HRTO 1495, which held the issuance of a trespass notice by a university is the last incident of discrimination and the ongoing exclusion of a student under that notice is a continuing effect of the single incident of discrimination. See also Garrie v. Janus Joan Inc., 2012 HRTO 1955.
28The 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 his failure to pursue his rights under the Code in a timely manner.
29The applicant states he delayed filing his Application because he was under house arrest after the criminal harassment charge on September 13, 2012. The applicant states he filed the Application one month after his house arrest ended. The difficulty with the applicant’s argument is that he had six months before the house arrest to file his Application and had sufficient information during that time to do so.
30In November 2011, the applicant obtained advice from a York Student Association lawyer in relation to the September 2011 incident. During the summary hearing the applicant stated it was suggested to him at that time that he could seek advice about his human rights. Thus, the applicant was aware as of November 2011 that he could seek legal advice about his human rights. The applicant could have acted on this information in March 2012 when he received the trespass notice.
31In May 2012, two months after the trespass notice, the applicant’s father hired a lawyer to represent the applicant. At that time, the applicant had access to legal advice.
32In June 2012, the applicant was pursuing academic appeals with Seneca College. Those appeals were heard in September 2012. It is clear that during this period of time, the applicant was pursuing at least some of his legal rights.
33In August 2012, the applicant filed human rights Applications against Seneca College and the Toronto Police Services Board in relation to the September 19, 2011 incident and the events that followed. The only explanation given by the applicant as to why he did not file an Application against York University at this time was three Applications was a lot to handle.
34I find the applicant has not established a good faith explanation for his delay in filing the Application in relation to the March 1, 2012 allegation for the following reasons. The trespass notice was given on March 1, 2012. The applicant had access to legal advice in May 2012 and was advised six months before that he could obtain advice about his human rights. The applicant was pursuing some of his legal rights in June 2012 and he filed two other human rights Application in August 2012. In my view, there is no reason why he could not have filed his Application against York University at that time. Had he done so, the March 1, 2012 incident would have been timely. For these reasons, I find that the applicant has failed to establish that his delay in filing the Application in relation to the March 1, 2012 trespass notice 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 March 1, 2012 trespass notice is dismissed because it is untimely.
September 13, 2012
35The applicant asserts that he was charged with criminal harassment on September 13, 2012 and subject to a Form 2 based on information provided by counsel to York University and delivered to the Crown prosecutor and the court. The applicant states the Form 2 alleges the applicant has a mental disorder that makes him aggressive, threatening and intense. The applicant asserts York University misconstrued an e-mail he sent to the university with a picture of Stephen Colbert as an illusion to a threat. He asserts further that York University misinterpreted comments made by him to the Senior Housing Manager as further threats. The applicant states York University described him as a terrorist threat. In summary, the applicant believes York University used his mental health to harm him by creating false information on the Form 2.
36The Code does not prohibit discrimination in all facets of life, but only with respect to the proscribed social areas of services, accommodation, employment and contracts. In order to sustain a complaint of discrimination in a particular social area, the complaint must relate to the social area. For example, if one complains about discrimination in the receipt of services, it must relate to the services provided by a service provider. The Tribunal has held there must be a service relationship between the service provider and the service recipient. Similarly, to support a complaint of discrimination in the social area of contracts, the alleged discrimination must relate to the contract.
37The applicant alleges that York University discriminated against him in the social area of contracts. However, the complaint does not relate to the tenancy agreement (the contract) or to the rental accommodation provided under the agreement. His complaint involves information provided by York University about the applicant’s alleged threatening conduct that was used to obtain the Form 2. The Form 2 was subsequently provided to the court in the criminal proceeding. Because the complaint does not relate to the tenancy agreement or to the accommodation provided thereunder, there is no social area in relation to this complaint. As such, the Tribunal does not have jurisdiction to hear this complaint.
38At the summary hearing, the applicant alleged further that York University had him charged criminally to prevent him from filing this Application. He asserts this is a form of reprisal under the Code.
39Section 8 of the Code provides specific protection against reprisal for claiming and enforcing one’s rights under the Code. In order to sustain a claim of reprisal, the alleged retaliatory act must occur after the rights have been claimed. The applicant did not provide any indication that he had sought to claim or enforce his Code rights prior to the Form 2 being issued, the alleged reprisal in this case. The first time the applicant asserted his Code rights was when he filed the Application, after the Form 2 had been issued. In these circumstances, there is no evidence that would support an allegation that York University reprised against the applicant under the Code. For this reason, I find that his reprisal claim has no reasonable prospect of success.
40This Application has no reasonable prospect of success. The incident of September 19, 2011 involves complaints against the police, not York University. The fact that York University security attended at the applicant’s apartment with the police does not make York University responsible for the conduct of the police. The applicant filed an Application against the Toronto Police Services Board for this complaint. That is the appropriate respondent in relation to this incident.
41The allegation concerning the March 1, 2012 trespass notice is out of time. The applicant has failed to provide a good faith explanation for his delay and this allegation is dismissed because it is untimely.
42The final allegation relates to the Form 2 completed by York University for the criminal proceeding. This complaint does not involve a social area between the applicant and York University. In particular, it does not involve the social area of contracts or the accommodation provided under the contract, the area relied upon by the applicant in this Application. In the absence of a social area, the Tribunal does not have jurisdiction over this allegation.
ORDER
43This Application is dismissed because it has no reasonable prospect of success.
Dated at Toronto, this 7th day of May, 2014.
”Signed by”________________________
Jennifer Scott
Vice-chair