Mitchell v. The Career Foundation, 2015 HRTO 1181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Mitchell Applicant

-and-

The Career Foundation and Steven Hempell Respondents

DECISION

Adjudicator: Dawn J. Kershaw
Date: September 4, 2015
Citation: 2015 HRTO 1181
Indexed as: Mitchell v. The Career Foundation

APPEARANCES

Michael Mitchell, Applicant Self-represented

The Career Foundation and Steven Hempell, Respondents Sabrina Lucibello, Counsel

Introduction

1This Application 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”).

2Pursuant to a Case Assessment Direction (“CAD”) dated March 30, 2015, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect of success that the Application will succeed.

3Both parties made submissions at the summary hearing by teleconference.

factual background

4The applicant self-identifies as a person with a disability. The applicant attended the organizational respondent, which is an employment centre, and the individual respondent was his counsellor there.

5The applicant alleges there was friction between him and the personal respondent. Therefore, in their second meeting on December 2, 2013, he requested a new counsellor. He states he bolstered his request by informing the personal respondent that he had a mental health disability and that his request was a “request for accommodation”.

6The applicant alleges that after he made the request, the personal respondent told the applicant he wanted to sign him up for one on one coaching sessions which were to begin two days later on December 4, 2014. The applicant alleges he told the personal respondent he would wait and speak to his new counsellor about it. The applicant alleges the personal respondent reiterated the recommendation by telling him that his new counsellor would also sign him up for the sessions, so why not let him do it. The applicant alleges he again declined and said he would wait until his request for accommodation was processed and would follow up with his new counsellor. The applicant alleges that after a brief discussion about how the transfer to a new counsellor would take place, the personal respondent again returned to the topic of scheduling the applicant for the one on one coaching sessions. The applicant states he had to forcefully decline again, at which point the personal respondent dropped the issue.

7The applicant alleges in his Application that the personal respondent’s repeated attempts to sign him up for the sessions after he requested accommodation by being transferred to another counsellor constituted harassment.

8The respondents deny they discriminated against the applicant on the basis of disability. They acknowledge it is the applicant’s view that his request for accommodation was denied, but in fact it was granted and in fact the applicant states in his Application that the personal respondent said he would speak to his manager that afternoon about the transfer. The respondents state they did not know of the applicant’s disability until the applicant requested the transfer, and as soon the applicant made the request, the personal respondent complied and gave the applicant his manager’s contact information.

9With respect to the personal respondent repeating the information about the sessions, the respondents submit the personal respondent raised the issue because the opening was in two days. The personal respondent thought the applicant could benefit from the sessions and it usually takes longer to get into such sessions.

10The personal respondent does not recall how many times he reiterated that the applicant could take the sessions, but submits that once he knew the applicant was not interested, he dropped the subject and ended the session.

11The respondents submit it is not discrimination on the basis of disability to try and schedule the applicant for the one on one sessions.

12The applicant counters that asking to change counsellors involved two steps – stopping the receipt of services from the personal respondent and changing to another counsellor. He submits the personal respondent refused to stop trying to provide him with services and therefore failed to accommodate his request for accommodation. The personal respondent’s repeated attempts to schedule him for something when he asked for a new counsellor is a refusal to accommodate. The applicant submits he felt forcibly confined in the personal respondent’s office because he would not stop.

DECISION

13The Application is dismissed on the basis that it does not have a reasonable prospect of success.

analysis

14This hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9 the Tribunal provided the following guidance:

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 will 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. [Emphasis added]

15The applicant alleges that the personal respondent continued to try and get him to take one on one coaching sessions after he asked to be transferred to another counsellor to accommodate his mental disability. He provided no evidence, or any evidence that may be reasonably available to him, of a link between those actions by the personal respondent and the ground of disability cited in the Application. In other words, the applicant has pointed to no evidence that the personal respondent did what he did to the applicant because the applicant had a mental health disability. He also pointed to no evidence that the personal respondent’s attempts to get him to take the sessions constituted harassment on the basis of disability.

16During the hearing, I twice attempted to ask the applicant further details of how the attempt to schedule the applicant for the sessions discriminated against him on the basis of disability. The first time, the applicant requested that I not interrupt him, so after hearing his and the respondent’s initial submissions, I asked the applicant the question again. He reiterated his initial submissions and then became angry and agitated and demanded that I answer his question of whether the facts he set out constituted discrimination. I advised him it was not my role today to answer his question, to which he replied that I had a duty to do so. I then concluded the hearing having heard both parties’ submissions and the applicant’s reply submissions.

17Just before the parties signed off the teleconference call, the applicant stated: “Liars”, although it is not clear to whom he was referring. If the reference was either to the Tribunal or respondents’ counsel, the applicant’s comments are inappropriate and in violation of Rule A7.1 of the Tribunal’s Rules of Procedure as follows:

A7.1 All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

18The Tribunal repeatedly has said that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See, for example: Leong v. Ontario (Attorney General), 2014 HRTO 311.

19Given the absence of any proposed evidence, or any evidence that may be reasonably available to the applicant, on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of disability.

ORDER

20The Application is dismissed.