Elgasuani v. Ontario (Transportation), 2015 HRTO 1445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arthur Elgasuani

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: October 29, 2015

Citation: 2015 HRTO 1445

Indexed as: Elgasuani v. Ontario (Transportation)

APPEARANCES

Arthur Elgasuani, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation, Respondent

David Milner, Counsel

1The applicant filed an Application against the Ontario Ministry of Transportation (“Ministry”) alleging discrimination and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, his allegations centre on the fact that the road he lives on, a municipal road, is not being maintained by his municipality. He claims discrimination by the Ministry because he complained about the municipality’s actions to the Ontario Minister of Transportation and did not receive a response.

2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. I understand that the applicant is frustrated by what he sees as negligence and corruption in relation to the lack of maintenance of the road in question. However, there is no reasonable prospect that his Application alleging discrimination and reprisal against by the Ministry will succeed.

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 and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal does not have the power to address allegations of unfairness, negligence, corruption, or breaches of the law that are unconnected to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the Code.

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 he or 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 or the evidence is not disputed by the applicant. The question in this case is: accepting what the applicant says as true and provable, is there a reasonable prospect that he can make out a violation of the Code by the Ministry?

7Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

8The applicant owns property on a certain road in the municipality of Port Hope. He confirmed that the road is a municipal road and not a provincial road or highway. He has had various tensions with neighbours of his who live across the road. He also has various frustrations with an alleged lack of responsiveness by the municipality. He claimed that municipal staff made certain comments that referenced his Russian background. He also claimed that he is being treated differently by the municipality because the first 200 meters of the road are maintained, but his section of the road is not.

9The only respondent named to this Application is the Ontario Ministry of Transportation. When I asked the applicant why he named the Ministry as the respondent, he said that he named the Ministry because he wrote letters to both the provincial and former federal ministers of transportation to complain about the municipality’s actions and they did not respond to his concerns. He claimed that the provincial and federal ministers of transport have the duty to respond to complaints and that it was discriminatory for them not to respond to his complaint.

Analysis

10I find that this Application must be dismissed as having no reasonable prospect of success under the Code.

11I note at the outset that the applicant referred to a book of documents that he supposedly filed with the Tribunal which he claimed would prove his allegations of discrimination. The Tribunal did not receive any such book of documents from the applicant. However, as I explained to the applicant at the summary hearing, I do not find it necessary for me to see the book which, among other things, contains photographs of the road in question. The reason that it is not necessary for me to see the book of documents is that, for the purposes of the summary hearing, I must accept everything the applicant described in relation to the road as being true and provable. I also must accept that it is true that the Ontario minister of transportation did not respond to the applicant’s letter.

12Even accepting these facts as true and provable, the applicant’s allegations of discrimination and reprisal against the Ministry stand no reasonable prospect of success. The applicant’s claim is, in essence, that the Ministry failed to follow up on his complaint when, in his view, it was bound to do so. According to the applicant, he did not know where else to turn to get someone to take action on his concerns regarding the road. While I understand that the applicant is frustrated by the alleged lack of response to his concerns, such a lack of response does not amount to discrimination under the Code. In order to make out a violation of the Code, an applicant must demonstrate differential treatment based on a ground protected under the Code. The applicant provided no information from which it could reasonably be inferred that the Ministry failed to respond to his letter as a result of his race, disability, or any other ground listed in his Application. As well, the Ministry is not responsible for any actions by separate entities or persons such as the municipality or the applicant’s neighbours.

13As for the applicant’s claim of reprisal, the Code’s reprisal protections are very specific. They do not provide general protections against retaliation or reprisal. They provide protection against reprisals for having claimed or enforced one’s rights under the Code. There was no evidence that the applicant has ever sought to claim or enforce any Code rights against the Ministry. Therefore, there is no reasonable prospect that he will be able to show that the Ministry did not respond to his letter as a reprisal within the meaning of the Code.

ORDER

14I understand that the applicant wishes to have his road maintained by his municipality. It is possible that there are other legal avenues under the common law or applicable statutes to achieve this objective. However, his allegations of discrimination and reprisal against the Ministry must be dismissed as having no reasonable prospect of success.