Campbell v. 145 Liberty Properties Inc., 2015 HRTO 358

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Campbell

Applicant

-and-

145 Liberty Properties Inc. c.o.b. Liberty Management Services Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: March 23, 2015

Citation: 2015 HRTO 358

Indexed as: Campbell v. 145 Liberty Properties Inc.

APPEARANCES

John Campbell, Applicant

Mary-Anne Thompson, Representative

145 Liberty Properties Inc., Respondent

Daryn M. Jeffries, Counsel

Introduction

1A summary hearing was held to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it would succeed. The parties also addressed two additional issues, namely, whether the Application should be dismissed for delay and because another proceeding appropriately dealt with the substance of it (s. 45.1).

Decision and Analysis

2This Application alleges discrimination with respect to employment and accommodation because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant states that he was a property manager for the respondent, which is a residential property management company. He lived and worked at the same building for approximately 11 years.

Section 45.1

3The applicant alleges in the narrative of his Application that the respondent improperly asserted he was a superintendent at the building and arranged to have him evicted once his employment was terminated. The respondent asserts that this is improperly before the Tribunal because this issue was before the Landlord and Tenant Board (“LTB”) and settled by way of an order before the LTB.

4In the summary hearing, the applicant’s representative clarified that the applicant was not intending to re-litigate this issue, but included the information about the eviction because of the manner in which it took place (i.e., the posting of the eviction notice on the door of the applicant’s apartment) and because the loss of the applicant’s apartment goes to his damages.

5Given the applicant’s clarification, it is not necessary for me to rule on this issue. The applicant has, however, sought leave to amend his Application, which I discuss below. When amending his Application, the applicant should clarify that the issue of whether the eviction before the LTB was proper is not an issue in contention before this Tribunal.

Delay

6The Application was filed on May 16, 2014. The narrative discusses, amongst other issues, the respondent’s request that the applicant cease to use a storage unit sometime in 2012, and non-payment for the applicant’s period off work following the diagnosis of a hernia in January 2013 and ensuing surgery for it in February 2014. The applicant does not suggest that this is in any way related to the respondent’s treatment of him following his disclosure of a second disability (arteriovenous malformation) in September 2013.

7At the summary hearing, the applicant’s representative clarified that this information was included for background only and did not constitute separate allegations of discrimination. She sought leave to amend the Application to reflect this.

No Reasonable Prospect of Success

8Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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 or witness statements.

9In this summary hearing, the focus was on whether the applicant had evidence reasonably available to him that could show a link between the respondent’s treatment of him and the ground of disability. The applicant states somewhat obliquely in his Application that “his treatment by the Company had changed to that of daily harassment.”

10The applicant’s representative clarified at the summary hearing, that following the disclosure of his arteriovenous malformation to the respondent, the respondent checked up on the applicant frequently and then terminated his employment. The representative also stated that the applicant has witnesses who will be able to testify about this increased scrutiny. The applicant submits that this is a sufficient basis for drawing an inference that his disability was a factor in the respondent’s treatment of him.

11Counsel for the respondent submitted at the summary hearing that the inquiries made of the applicant did not constitute harassment, and that the termination of the applicant was warranted and unrelated to his disability. To that end, the respondent submitted a series of emails, which show a breakdown in the relationship between the applicant and the person he reported to, Les Saperia. These emails address issues that, on their face, are unconnected with the applicant’s disability and suggest a possible non-discriminatory reason for the termination of the applicant’s employment.

12However, neither the applicant nor his witnesses have testified and so the applicant has not been afforded the opportunity to provide any context for these emails. Moreover, the applicant has not submitted his documents, which may or may not provide a basis from which the Tribunal might infer that his disability was a factor in the respondent’s treatment of him.

13The purpose of a summary hearing is not to assess evidence and draw the necessary inferences, but simply to determine whether the applicant has a basis for his allegations beyond mere speculation. In this case, it is necessary for the Tribunal to hear at least the applicant’s evidence before making a final determination of the allegations in the Application.

Next Steps

14The applicant has sought to amend his Application to reflect the fact that his actual allegations of discrimination concern the period following the disclosure of his second disability in September 2013. The applicant has one week from the date of this Interim Decision to file these amendments. If it so chooses, the respondent may file an amended Response within two weeks of the receipt of the applicant’s amended Application.

15As the parties have already participated in mediation, the next stage is to schedule a hearing. A Notice of Hearing will be sent to the parties in due course.

Order

16In sum, I have made the following orders/directions:

a. Within one week of the date of this Interim Decision, the applicant may file an amended Application to reflect that the allegations of discrimination concern events following his disclosure of his arteriovenous malformation in September 2013;

b. Within two weeks of the receipt of the applicant’s amended Application, the respondent may file an amended Response; and

c. The respondent’s request to dismiss the Application on the basis of delay, s. 45(1) and no reasonable prospect of success is dismissed.

17I am not seized of this matter.