Bloom v. Ontario Ironworkers/Rodmen Benefit Plan Administrators Corporation, 2015 HRTO 1363

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Bloom

Applicant

-and-

Ontario Ironworkers/Rodmen Benefit Plan Administrators Corporation

Respondent

DECISION

Adjudicator: Kevin G. Cleghorn

Date: October 13, 2015

Citation: 2015 HRTO 1363

Indexed as: Bloom v. Ontario Ironworkers/Rodmen Benefit Plan Administrators Corporation

Gregory Bloom, Applicant

Self-represented

Ontario Ironworkers/Rodmen Benefit Plan Administrators Corporation, Respondent

Aminah Hanif, Counsel

APPEARANCES

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in goods, services and facilities on the basis of race, ancestry and ethnic origin.

2By Case Assessment Direction (the “CAD”) dated May 1, 2015, the Tribunal directed that a preliminary hearing be held in this matter by teleconference. It states as follows at paragraphs 1 and 11:

Having reviewed the file, the Tribunal has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

(a) it appears that some or all of the allegations may be untimely; and/or

(b) there is no reasonable prospect that the Application or part of the Application will succeed.

…

(T)he applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

3The applicant delivered a Request for Order (“RFO”) prior to the preliminary hearing. He seeks production of a series of documents and answers to specific questions. I will consider his RFO only in the event that I am satisfied that the Application should proceed through the Tribunal process after hearing arguments on the issues set out in the CAD. In the same vein, I will consider the issue of the timeliness of the allegations made in the Application only in the event that I do not dismiss it on the basis that it has no reasonable prospect of success. As such, this matter is for all intents and purposes primarily a Summary Hearing.

ANALYSIS

Summary Hearings

4Rule 19A of the Tribunal’s Rules of Procedure reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.

5The test is whether an application, in whole or in part, has no reasonable prospect of success. If, after considering the submissions and arguments made by the applicant, he has been unable to point to any information which tends to support his belief that he has experienced discrimination under the Code, the Application will be dismissed as having no reasonable prospect of success. If some or all of the allegations are not dismissed at this stage, they will continue in the Tribunal’s process and might be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

6In Dabic v. Windsor Police Service 2010 HRTO 199 at paras. 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Arguments of the Applicant

7The applicant self-identifies as an aboriginal person (he continually referred to himself in the third person as “this Indian” in the course of his argument). He is a retired member of the respondent. He began receiving pension payments from the respondent on November 1, 2004. Over the course of time, the Canada Customs and Revenue Agency (“CCRA”) has forwarded to the respondent a document entitled “Requirement to Pay”, a form of garnishment, on four separate occasions. The respondent has remitted to the Government of Canada significant portions of the applicant’s pension entitlement, over the applicant’s vehement objections. That remittance has amounted to, at times, 100% of his pension entitlement.

8In addition, the applicant, as a retired member of the respondent, was entitled to maintain general benefits coverage (for health, dental and medication needs presumably). He was able to maintain that coverage through working additional hours post-retirement or by paying directly a monthly premium. The applicant saw his benefits coverage terminate in November, 2009 when he neither continued to work nor paid the monthly premium as required. He attempted to pay a lump sum of $4,320.00 to the respondent in January, 2014 for retroactive premiums but the respondent declined to accept his payment, citing the strict terms of the benefits plan. The respondent did not reinstate the applicant’s benefits coverage at any time after November, 2009.

9The crux of the applicant’s position is that he experienced discrimination by virtue of the respondent complying with an unconstitutional Requirement to Pay notification. He states that the CCRA has no legal authority over him due to his status as a “North American Indian”, in the words of the applicant. He cited a variety of historical documents and miscellaneous cases, all of which, in his view, point to the illegality and discriminatory nature of the respondent’s actions in light of his rights as an aboriginal person. He also states that the he is not subject to provincial legislation because of his status as an aboriginal person.

Arguments of the Respondent

10Counsel for the respondent argues that there is no link to the allegations made by the applicant and any of the grounds that he cites. Counsel submits that the Code does not deal with general allegations of unfair treatment or harassment and that his Application consists of nothing more than bald assertions. There is no link to the Code in this instance and as such the Application should be dismissed. The respondent indicates it was required to comply with the lawful Requirement to Pay notices received from CCRA. The respondent further states that it follows a strict policy of not permitting members to be re-instated into the benefits plan once the coverage lapses; the rationale for that policy is to discourage members from being part of the plan only when their health situations may necessitate their participation.

Reply of the Applicant

11The applicant replies that there is ample and continuing evidence of the discrimination that he experiences on an ongoing basis. He states that the harassment has taken the form of the respondent ignoring his constitutional rights as an aboriginal person by complying with CCRA’s demands for remittance of his pension entitlement. He states that his name was changed in the respondent’s computer system, establishing another basis for his discriminatory treatment.

The Law

12The Application itself and the submissions of the applicant are devoid of particulars of any differential treatment per se. The argument of the applicant is essentially that he has constitutional rights as an aboriginal person. One of those rights is exemption from taxation by the Government of Canada. By virtue of complying with CCRA’s allegedly unconstitutional payment demand, the applicant states that the respondent is discriminating against him by denying him his pension. Similarly, his view is that any treatment that he received from the respondent (such as the unwillingness to reinstate his benefits coverage) must be discriminatory because it did not meet his expectations in terms of the service to which he is entitled.

13It is not sufficient to make bald assertions to establish discrimination or differential treatment: see Sosoo v. Winners Merchants 2010 HRTO 1367; Jagait v. IN TECH Risk Management 2009 HRTO 779; and Howard v. 407 ETR Concesssion 2011 HRTO 1511. Despite the belief of the applicant, the initial onus is on him to establish that there is some evidence to support his allegations of discrimination in the absence of any such link in his Application: see Sosoo v. Winner’s Merchants at paras. 66-67 and Howard v. 407 ETR Concession at para. 13. The threshold for establishing a reasonable prospect of success at the summary hearing stage may be a low one but, ultimately, there must be some foundation upon which the Tribunal can find that the applicant was discriminated against, and that the discrimination is linked to a prohibited ground under the Code: see Sosoo v. Winner’s Merchants at para. 71 and Howard v. 407 ETR Concession at para. 17.

14In the instance case, there is an absence of any proposed evidence of discrimination whatsoever, by the applicant; either direct or circumstantial. As opposed to merely insufficient, ambiguous or general evidence being offered in this matter by the applicant, there is, in fact, an absence of any evidence whatsoever. There were literally no allegations that could form any basis for establishing a Code violation, beyond mere conjecture or speculation on the part of the applicant. There is no allegation, for example, of use of racist language by any employees of the respondent.

15With respect to the allegation that the refusal to re-institute his benefits plan was discriminatory, the applicant has neither presented nor pointed to any evidence to establish differential treatment – this allegation is purely speculative. The allegation that complying with the garnishment order was discriminatory is really not even an argument that there was any differential treatment - either direct or indirect (i.e. adverse) in nature. Even if the garnishment order was constitutionally unsound, which the applicant appears to believe to be the case, that does not mean that the order itself was discriminatory. There is even less basis to support the proposition that merely complying with the garnishment order – something the respondent was legally obliged to do – was discriminatory in the sense of constituting differential treatment on the basis of a Code ground. There is also no suggestion in terms of evidence the applicant has or can point to that any specific person has been treated differently by the respondent in the face of similar circumstances or a like demand by CCRA, although the applicant believes that that has happened.

16On a general basis, there is no evidence of any sort offered by the applicant that links a prohibited ground under the Code with the treatment afforded to him by the respondent at any time. There is no suggestion, nor is there any reasonable basis for believing, that the respondent has in its possession any documents or information that will support the applicant’s claims. There is no reasonable basis for believing that information could be uncovered in the course of cross-examination of the respondent’s witnesses that would buttress the applicant’s position. In that sense, there is no concrete basis for the applicant to submit that he can prove his case on the balance of probabilities if only he is permitted to continue on to a hearing.

17As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

There is no evidence in any event which establishes a nexus with a proscribed ground of discrimination under the Code. There is no evidence whatsoever to suggest that the actions of the respondent have amounted, to date, as any form of discrimination toward the applicant at any time.

18If I accept the facts as alleged in the Application, I am unable to conclude that there is a link between those facts and discrimination on the grounds of any of race, ancestry, and ethnic origin. As opposed to pointing me to any evidence in the Application or that he could obtain that would support the conclusion that any of the above-mentioned grounds was a factor in the respondent’s treatment of him, the applicant chose to provide a lengthy recantation of the information previously outlined in his Application and a random series of quotes from a variety of cases dealing with the historical rights of aboriginal persons. He did not offer anything in the way of evidence to support a nexus between his allegations and a prohibited ground of discrimination under the Code, despite the clear wording of the Case Assessment Direction and a reminder of his need to do just that at the outset of the summary hearing. If anything, the applicant may have a dispute with CCRA about the validity of its Requirement to Pay notices, which would, necessarily, need to be considered in another forum.

DECISION

17For all the foregoing reasons, I have concluded that there is no reasonable prospect that the Application can succeed. Therefore, the Application is dismissed.