Macanovic v. Toronto Public Library Board, 2014 HRTO 794

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jemila Macanovic Applicant

-and-

Toronto Public Library Board Respondent

DECISION

Adjudicator: Jennifer Scott Date: June 4, 2014 Citation: 2014 HRTO 794 Indexed as: Macanovic v. Toronto Public Library Board

APPEARANCES

Jemila Macanovic, Applicant Self-represented

Toronto Public Library Board, Respondent David Gourlay, Counsel

BACKGROUND

1This Application, filed on June 11, 2013, 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”).

2By Case Assessment Direction dated October 8, 2013 (the “CAD”), 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 having reviewed the Application, it appeared the applicant may be unable to establish a link between the alleged discrimination and a prohibited ground of discrimination.

3The summary hearing was conducted by teleconference on March 6, 2014.

SUMMARY HEARING PROCESS

4The 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.

5The 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.

6The 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.

7However, 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 evidence the applicant is able to point to, either in her possession or evidence that may be reasonably available to her, 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.

8The 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.

9Having 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

10The following facts are taken from the Application and the Reply.

11On June 12, 2012, the applicant went to the Deer Park Library (the “Library”). Around 7:30 p.m., another patron came to the Library. The applicant acknowledges that the other patron has a mental illness. The other patron became disruptive in the bathroom. A branch manager approached the bathroom and asked the other patron to quiet down. The other patron exited the bathroom and went to a computer station beside the applicant. The other patron began to yell at herself. Over a period of about twenty minutes, a Library staff person asked the other patron to quiet down several times. The other patron accused library staff of hacking into her computer.

12After about twenty minutes, a female patron complained about the yelling to the library staff. Shortly thereafter, the applicant and a male patron advised the other patron that her disruption was too much. The applicant and the male patron then approached the staff person to complain about the other patron’s conduct. They advised the staff person that they had tolerated the other patron’s conduct for thirty minutes and stated it was distressing to their health, but gave no additional information as to how. The other patron then approached the desk and began to yell over the applicant and the male patron, not allowing them to finish their conversation with the staff person.

13The staff person advised all three patrons that if they did not stop complaining, they would have to leave the Library. The male patron told the staff person that her comments were inappropriate because they had every right to complain. The applicant asked for a complaint letter so that she could complain about the threat. In her written submissions on the summary hearing, the applicant states:

The applicant was shocked by the threat and as such did not think it was prudent to continue complaining to the clerk. She immediately requested a complaint form so that she could write up a complaint about the threat. She was very shocked by the clerk’s aggressive and unsympathetic response to what was already a distressing situation for everyone at the library. In the applicant’s view, it seemed that the clerk had just escalated the matter rather than try to de-escalate the situation.

14The branch manager then came back and told the other patron that she needed to stop yelling and to leave the Library. He advised the other patron that he was not going to condone her conduct any longer. The other patron left the Library. The applicant approached the branch manager and told him she was upset that the staff person threatened to kick them out. She told the branch manager that she understood the other patron was mentally ill and in need of accommodation, but that others should not be hurt when applying those accommodations given that many who use the library suffer from other disabilities and cannot handle such emotionally stressful behaviour.

15The branch manager agreed with the applicant that the other patron was having an effect on other users of the Library who also have disabilities and may not be able to cope. The applicant suggested to the branch manager that the other patron should indicate what accommodations were appropriate for her and that the Library needed to address this issue rather than continuing to warn her that she will be kicked out given it is evident that her behaviour is the result of her disability.

16The applicant wrote to the Library on June 28, 2012. In that letter, she complains about the many instances where patrons using the Library have acted out suddenly in violence or in other distressing manners. She reiterates her complaint regarding how the Library handled the incident of June 12, 2012 where it allowed the other patron to yell and act in the most distressing manner without any regard as to how this would impact the emotional health of the other patrons using the library – patrons with other mental health issues. The applicant complains that she is subject to this sort of behaviour repeatedly and the response she receives is inadequate.

17In the June 28, 2012 letter, the applicant claimed the Library failed to inquire (presumably on June 12, 2012) how they could accommodate her despite being advised that she has an anxiety disorder. However, during the summary hearing, the applicant acknowledged that she did not raise her own mental health nor did she request accommodation on June 12, 2012. She asserted she did not request accommodation on June 12, 2012 because the staff person cut off all communication with the threat. The applicant claimed she did ask for accommodation in her letter of June 28, 2012.

ANALYSIS

Incident of June 12, 2012

18In order to determine whether the Application has a reasonable prospect of success, it is necessary to review the facts set out in the Application. It is not in dispute that the applicant and the male patron complained about the behaviour of the other patron. The other patron then complained about them. The staff person dealt with the situation by threatening to remove all three patrons.

19The applicant spoke to the branch manager to complain about the staff person’s threat. The applicant advised the branch manager that she felt the staff person’s response should be addressed because the health and emotional well-being of other patrons was being compromised. In the Application, the applicant states:

The branch manager accepts that I am telling the truth and tells me he understands that she may have said something because it was very difficult to control the agitated patron. I tell the branch manager that it is still unacceptable to deal with complaints with a threat.

20There is no assertion in the Application that on June 12, 2012, the applicant advised the staff person or the branch manager that the conduct of the other patron was adversely impacting her own mental health and that she required accommodation. This point is conceded by the applicant in her written submissions on the summary hearing at paragraph 23. At best, the applicant raised the impact of the other patron’s behaviour on the health and emotional well-being of other users of the Library. This does not constitute a request for accommodation by the applicant. In my view, it is clear in the Application that the incident being complained of, in regard to the applicant, is the threat to remove her from the Library.

21I find the Application has no reasonable prospect of success because the applicant is unable to establish a link between the disadvantaged treatment and a prohibited ground of discrimination. The disadvantageous treatment being complained about by the applicant is the staff person threatening to remove her from the Library on June 12, 2012. There is no evidence that the applicant’s disability played any part in the staff person’s threat. All three patrons were complaining about each other and the staff person dealt with them together as one disruptive unit instead of determining the underlying cause of disruption.

22What the applicant is really complaining about is the unfairness of receiving a threat to be removed in response to what she perceived to be a valid complaint about the conduct of the other patron. The Tribunal’s jurisprudence is clear that it does not have jurisdiction over complaints of general unfairness.

23The applicant also complains that the Library failed to investigate her complaint. This allegation has no reasonable prospect of success because the Tribunal has no jurisdiction over an allegation that a service-provider has failed to investigate a complaint of unfairness, which is what the June 12, 2012 complaint is.

Letter of Complaint Dated June 28, 2012

24The applicant wrote to the Library on June 28, 2012. In that letter, she complains about the incident on June 12, 2012 and states she is repeatedly subject to this kind of behaviour from the other patron. The applicant complains the Library’s response is inadequate and it has failed to address her concerns. The applicant complains, for the first time, that the Library has failed to inquire as to how it can accommodate the applicant knowing the applicant has an anxiety disorder.

25In the letter of June 28, 2012, the applicant raises a new complaint that was not made on June 12, 2012. On June 12, 2012, the applicant did not complain that the conduct of the other patron was adversely impacting her own mental health. The applicant cannot, after the fact, in her letter of June 28, 2012 re-characterize the incident of June 12, 2012.

26The applicant asserts that the staff person’s conduct prevented her from making an accommodation request on June 12, 2012. Even if I accept this argument, the applicant could have complained to the branch manager with whom she had a fairly detailed discussion that day. She did not do so.

27It may be that in her letter of June 28, 2012, the applicant was advising the Library that the incident of June 12, 2012 was not an isolated incident and that she has been frequently subject to disturbing conduct from other patrons that adversely impacts her own mental health. This may well be a request for accommodation. For this request to be relevant to an allegation of discrimination under the Code, there must be incidents after June 28, 2012 where the applicant’s mental health has been adversely impacted by the conduct of the other patrons and the Library has failed to address the impact of such behaviour on the applicant’s disability. There are no such allegations in the Application.

28In summary, the applicant is complaining about the threat by the staff person on June 12, 2012. There is no link between the threat and a prohibited ground of discrimination. The applicant has attempted in her letter of June 28, 2012 to re-characterize the incident of June 12, 2012 as a failure to accommodate. The facts set out in the Application do not support such a re-characterization. The letter of June 28, 2012 may well constitute a request for accommodation. However, there are no incidents after June 28, 2012 alleging a failure to accommodate in the Application. For these reasons, the Application has no reasonable prospect of success.

ORDER

29The Application is dismissed because it has no reasonable prospect of success.