Schembri v. Metrolinx, 2015 HRTO 468

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Schembri

Applicant

-and-

Metrolinx and Robert Brown

Respondents

-and-

Amalgamated Transit Union Local 1587

Intervenor

AND BETWEEN:

Helen Schembri

Applicant

-and-

Metrolinx and Robert Brown

Respondents

-and-

Amalgamated Transit Union Local 1587

Intervenor

DECISION

Adjudicator: Eva Nichols Date: April 13, 2015 Citation: 2015 HRTO 468 Indexed as: Schembri v. Metrolinx

APPEARANCES

Jonathan Schembri, Applicant Self-represented

Helen Schembri, Applicant Self-represented

Robert Brown, Respondent and Amalgamated Transit Union, Local 1587 Ian J. Fellows, Counsel

Metrolinx, Respondent Daniel Fogel, Counsel

Introduction

1These are two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods facilities and services because of disability and family status.

2Because the two applicants are son and mother and because the Applications relate to the same single incident, the two Applications have been joined and heard at the same time.

3Further, since the allegation of discrimination on the ground of family status is entirely dependent on whether the allegation on the ground of disability is proven, the focus of the hearing was on the matter of disability discrimination.

PRELIMINARY MATTERS

Regarding the individual respondent

4Counsel for the individual respondent, Robert Brown, submitted a request to the Tribunal to have Mr. Brown removed as an individual respondent. He stated that Mr. Brown was only doing his job, i.e., driving a GO Transit bus when the alleged incident occurred, and therefore, he should not be considered liable for the alleged discrimination.

5Counsel cited an earlier HRTO decision (Towsley v. Pursuit Health Management Inc. 2014 HRTO 52 ("Towsley")) as well as the Tribunal's Practice Direction on Naming Respondents and Rule 1.7 (b), which allows the Tribunal to remove a named party.

6Counsel submitted that the retention of Mr. Brown as a personal respondent adds an unnecessary complication to this proceeding, given that the corporate respondent, Metrolinx, which operates GO Transit, is alleged to be liable for the same alleged conduct.

7He stated that the corporate respondent can fully remedy the situation and can respond to the allegations. Further, that removing the personal respondent would not represent any prejudice to the other parties, given that Mr. Brown followed the official company procedure in his actions. He contacted the dispatch office and requested the intervention of a traffic safety officer. It was not his responsibility that a police officer was sent to follow up, instead of the more usual practice of sending a supervisor when a driver expresses a concern about something or someone.

8Counsel stressed that Mr. Brown co-operated fully with the investigation.

9The applicants opposed the removal of the personal respondent on the grounds that it was Mr. Brown's direct actions that were discriminatory.

10Counsel for the corporate respondent also opposed the removal of the personal respondent. He stated that Mr. Brown exceeded his authority as a bus driver when he engaged in this alleged conduct. The fact that he was disciplined by the company proves that the company does not believe that his actions were a routine part of doing his job.

11Metrolinx does not accept the corporate liability cited in Towsley.

12While Metrolinx takes the position that the actions of the individual respondent were not discriminatory under the Code, nevertheless, it believes that the conduct was inappropriate and contradictory to the company's customer service policy.

13I declined to remove Mr. Brown as a personal respondent.

14In making this decision, I relied on the Practice Direction on Naming Respondents. I believe that there was a compelling reason to continue the proceeding against the individual respondent because his conduct is clearly a central issue in this dispute. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para 42:

A compelling judicial reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is the central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

Acceptance of agreed statement of facts as exhibits

15All parties to these Applications agreed to submit to the Tribunal two sets of agreed statements of facts. One of these related to the communication following the alleged incident between the applicants' counsel, who no longer represents the applicants, and Metrolinx. The second document listed some facts about the operations of Metrolinx and GO Transit and the training provided to staff, including Robert Brown, relating to customer service, sensitivity to diversity and security awareness.

16The document also cited the Accessibility for Ontarians with Disabilities Act, 2005 and Code-related training that Robert Brown completed in July, 2014.

17All parties also accepted, as an agreed statement of facts, the notes of P. C. Schultz, the York Regional Police officer who was dispatched to the commuter lot at Aurora Road and Highway 404 ("the Aurora car pool lot") when the alleged incident occurred. This included the substance of the conversations that P.C. Schultz had with the individual respondent and the applicants.

THE AGREED UPON EVENTS OF MAY 5, 2013

18The alleged incident of discrimination occurred on May 5, 2013. All parties agreed upon the facts of these occurrences, which were supported by the transcript of the driver's telephone conversation with the GO Transit Control Centre (GTCC) and by the police officer's notes (see above).

19Mr. Brown was driving the 16:10 GO Transit bus leaving Union Station and going to Newmarket.

20The applicants were passengers on this bus which was close to full capacity. Jonathan Schembri sat in the front row on the right hand side of the bus and his mother, Helen Schembri, sat directly behind Jonathan. They were unable to sit together.

21At approximately 16:27, while driving the bus, Mr. Brown radioed the GTCC and requested that a supervisor or a transit safety officer meet the bus when it arrived at the Aurora car pool lot. When questioned by the individual at the GTCC about the reason for this request, Mr. Brown described that he had been stalked by an individual both in his personal life and at work from time to time and that he believed that the stalker was currently on his bus.

22He confirmed that there was no danger either to himself or to the passengers. The individual in question had not threatened him or caused any problems, but he stated that he would like to have had this individual identified and perhaps be told to stay away from Mr. Brown in the future.

23Having been told that there was no supervisor or traffic safety officer available to meet his bus, Mr. Brown asked if a police officer could be dispatched to help with identifying his potential stalker. When questioned by dispatch, he stated that he had not previously involved the police and all he wanted at this time was a "professional observer" who could identify the individual. Then, "if it becomes a problem I'll see a lawyer myself personally".

24P.C. Schultz met the bus at the Aurora car pool lot at 17:04. The bus was parked with all continuing passengers, including the applicants, on board.

25The bus driver got off the bus and spoke with the police officer, describing his concerns about being the victim of stalking. He requested that the police officer speak with the applicants, get their names and find out if he knows them.

26P.C. Schultz reported that the individual respondent stated that he was unsure whether someone was playing a joke on him or trying to make him look crazy. P.C. Schultz also reported that he questioned the individual respondent whether he had any diagnosed mental health issues, to which the respondent replied in the negative.

27The police officer then boarded the bus and asked the applicants to get off and speak with him. His notes indicate that the female applicant said that they had no idea who the bus driver was, neither she nor her son had ever spoken with the driver and did not understand why they were being questioned by the police.

28P.C. Schultz reported that the female applicant advised him that her son has autism, but is very high functioning. He has difficulties with speaking and communicating with people and, in the opinion of the mother, perhaps that is why the driver might have been "put off" or nervous. The fact that Jonathan went to Georgian College in Barrie and always travelled by bus, might have been the reason why the driver had seen him before.

29P.C. Schultz then advised the driver that he had spoken with the passengers, that there appears to have been no harassment and he should continue the journey to Newmarket, as scheduled.

30The applicants did not reboard the bus at this time. The bus left the Aurora car pool lot with the remaining passengers and the individual respondent.

EVIDENCE OF THE INDIVIDUAL RESPONDENT

31With the agreement of all parties, the individual respondent was the first witness to testify.

32Under oath, Mr. Brown confirmed that he had been a driver for Metrolinx/GO Transit since 2001. Prior to that, he worked as a school bus driver.

33He described that over some months, perhaps as long as a year, prior to the May 5, 2013 incident, he became aware of a person, whom he identified as the male applicant, Jonathan Schembri. While he never met this person, he saw him "every now and then" on his bus or at a bus station. After a while he became aware that this person appeared more frequently than would be dictated by chance and he also saw him at the mall, in the parking lot, i.e., places where Mr. Brown was not driving a bus. In the period immediately before the May 5, 2013 incident, he saw this man quite frequently. Mr. Brown apparently tried to speak to this individual, but got no response.

34Mr. Brown confirmed the events of May 5, 2013 as described above, derived from the transcript of his telephone conversations with GTCC and P.C. Schultz's notes.

35He added the following information. Since the bus was so busy, the male applicant sat in the right hand front seat about 3 feet from the driver. While there is a plexiglass shield immediately behind the driver, there is nothing on the right hand side, as a result of which, the driver could see him in his peripheral vision at all times.

36As he was driving, he reflected on his experiences with this individual and decided that he should do something positive to identify who this individual is and why is he stalking him. He stated that the apparent stalker was not doing anything to give him cause for concern, but he still felt that this was an opportunity to resolve the identity of his stalker.

37Mr. Brown stated that in his conversation with P.C. Schultz, he explained the concerns about stalking, but stressed that he was not threatened in any way by the passengers concerned.

38After the police officer had spoken with the applicants, he informed Mr. Brown that the male passenger had a "communication problem" and that his mother had stated that "he had autism". Mr. Brown noted at that point that the male applicant wore thick glasses and moved "awkwardly" when he got off the bus. Mr. Brown assumed that the "communication problem" referred to by the police officer meant that the male applicant had a hearing problem. Mr. Brown thought that perhaps the hearing problem, which he was not aware of before, was complicated by a vision problem.

39Mr. Brown stated that he was satisfied with P.C. Schultz's comments and was prepared to continue the journey with the applicants on board. However, they decided not to reboard and he carried on without them.

40Mr. Brown submitted a notification report to his supervisor in accordance with GO transit policy. In this report he referred to the matter of stalking, but did not describe the passengers he was concerned about. He stated that during the period of the bus journey, while he was talking to the staff of GTCC, he had no knowledge of Mr. Schembri being a person with a disability. He first became aware of this fact after P.C. Schultz told him.

41Mr. Brown stated that since this particular event, he has seen Mr. Schembri on his bus at least a couple of times. He recalled seeing Mr. Schembri in mid-November 2013 and some time in December 2014. He had no concerns about either applicant travelling on his bus as passengers.

42During cross-examination, Mrs. Schembri questioned Mr. Brown about the reason why he asked for a supervisor, when there was no apparent direct threat to him from the passenger in question. Mr. Brown reiterated his concerns about stalking and explained that a bus driver who has concerns about a passenger can only deal with this by contacting dispatch. He stated that he did not initially ask for a police officer to attend the bus, but that since there was no supervisor or transit safety officer available, the police officer acted as "their replacement".

43Most of the cross-examination then focussed on an e-mail, dated May 11, 2013, and the written report, dated May 12, 2013, of the interview that Mr. Brown had with his supervisors on May 11, 2013, regarding this incident. Both the e-mail and the report were prepared by a Supervisor at the Oshawa GO Garage. This report contains Mr. Brown's description of the apparent stalking incidents prior to May 5, 2013. The supervisor wrote that "Driver Brown's account of this matter has been continually vague and lacking in credible detail".

44The supervisor did report that "Mr. Brown sincerely believed that the applicants were stalking him due to their appearance in various locations in his personal and professional life". Further, that Mr. Brown's request for a back-up was not for the purpose of removing the passengers, but to have a witness "to confirm that they were there".

45Mr. Brown's description of the male applicant, as written in the e-mail dated May 11, 2013, included the following: "wearing thick glasses and with a suspected hearing problem (possible mental issues)".

46The more detailed written report, dated May 12, 2013, states that Mr. Brown's description of the male applicant included the words "possibly mentally disabled".

47Mr. Brown stated that while he had no clear recollection of exactly what he said word for word during this interview, he is pretty sure that he did refer to the thick glasses; that, having interpreted P.C. Schultz's "communication problem" as a hearing impairment, he might have referred to this; but he definitely did not make any reference to the applicant being "mentally disabled". He stated that he had no reason to believe this.

48Mr. Brown stated that he was very sorry about the events of May 5, 2013, but that he sincerely had believed that the applicants had been stalking him.

49In response to cross-examination by counsel for the corporate respondent, Mr. Brown confirmed that he had been disciplined for his actions on that day by being suspended for two days without pay.

EVIDENCE OF THE APPLICANTS

Jonathan Schembri's evidence

50Mr. Jonathan Schembri, the male applicant, read his evidence from a prepared statement, which was the same as his original Application.

51He briefly described the events of May 5, 2013.

52He stated that the driver ordered him and his mother off the bus and that they were subjected to harassment and discrimination. They were subjected to unnecessary police scrutiny and charged with harassing the driver over a couple of years.

53He stated that he is a person with a disability and he believes that the driver was uncomfortable with him because of his disability.

54He went on to say that the driver's conduct was contrary to the Code and that the driver ought to have known that his conduct was inappropriate. Calling the police was harassment, when clearly he and his mother had no knowledge or awareness of any of the purported stalking incidents.

55He charged that Metrolinx's investigation of the matter was faulty, since it did not acknowledge or explore the Code breach.

56He stated that he challenged the veracity of Driver Brown's evidence. Further, that the driver's apparent inability to recall what he said in his interview with his supervisors was unbelievable.

57His evidence concluded with reiterating the remedies that he wanted the Tribunal to order.

58On cross-examination, Mr. Schembri confirmed that his written statement was prepared by his mother and not him.

59He clarified that it was P.C. Schultz who asked him and his mother to get off the bus and that he had not ever actually spoken to or with Driver Brown.

Helen Schembri's evidence

60The female applicant, Mrs. Schembri, also read her witness statement, as submitted with her Application.

61She also described the events of May 5, 2013.

62She stated that these events were highly stressful for both her and her son. As a result, she ended up having to go to the hospital on the evening of May 5, 2013, with anxiety symptoms, which she ascribes to the events on the bus.

63She stated that she was afraid for the safety of both herself and her son following being questioned by the police and decided that they would not be safe travelling further on that bus with that driver. She decided that they should wait for a family member to drive them home.

64She confirmed that she told P.C. Schultz about Jonathan's autism. She asked P.C. Schultz if it (the day's events) could possibly have anything to do with Jonathan's condition and he apparently advised her that perhaps it could.

65On the following day, on May 6, 2013, Mrs. Schembri contacted GO transit to report this incident and her concerns. She described the events of the previous day, including the police involvement. According to the GO Transit Case Report that she entered into evidence, she stated that "she had no idea why the police were called", until she was told that the driver accused her of stalking him. She informed Customer Service that she had contacted a lawyer about this matter.

66She spoke about her follow up contact with P.C. Schultz and the fact that she collapsed while at the police station and once again ended up in hospital, being treated for stress and anxiety.

67In cross-examination, counsel for the corporate respondent questioned Mrs. Schembri about the follow up to her complaint to GO Transit. These included a letter of apology and an unconditional offer of compensation by the Vice-President of GO Transit, sent to her lawyer on July 9, 2013 as well as an unconditional offer of reimbursement for her out of pocket expenses, sent to her lawyer on July 10, 2013.

68Mrs. Schembri stated that she first became aware of these letters from the corporate respondent on April 9, 2014. The information was provided to her by Mr. Maurice Brenner at that time, but that Mr. Adam White, the lawyer to whom these letters were sent denied all knowledge of this correspondence.

69Mrs. Schembri confirmed that her primary concern regarding these matters was her concern about her son.

NO REASONABLE PROSPECT OF SUCCESS CONSIDERATION

70Following the evidence of the applicants and the individual respondent, I addressed the question of whether these Applications have any reasonable prospect of success. I stated, both orally and in a follow up Case Assessment Direction (CAD), dated March 12, 2015, the following:

Based on the evidence provided to date, it is not clear how the applicants' experiences, while clearly unpleasant and stressful, are directly linked to the Code-protected grounds cited in the Applications.

71I directed the parties to make oral submissions on the next scheduled hearing day on whether these Applications have a reasonable prospect of success. In the CAD I referred to the parties' attention to two previous potentially relevant HRTO decisions, Dabic v. Windsor Police Service 2010 HRTO 1994 and Pellerin v. Conseil Scolaire de district catholique Centre-Sud 2011 HRTO 1777.

The applicants' submissions on this matter

72Mrs. Schembri made her oral submissions on this matter on behalf of both applicants. She once again spoke about how stressful these events were for both her and her son. She cited her hospital visits as proof of how they were affected by these events.

73She cited the e-mail and the report related to the May 11, 2013, meeting that the individual respondent had with his supervisor and other GO Transit staff, where apparently Mr. Brown referred to her son as "possibly mentally disabled".

74She submitted that Mr. Brown's evidence was unreliable, since even his supervisors commented on his vague answers. Further, that the fact that he described Jonathan as hearing impaired, while she had told P.C. Schultz that Jonathan has autism is a further evidence of his lack of credibility.

75She submitted that she believes that Mr. Brown had been watching Jonathan for several years, while he travelled to college in Barrie by bus and had decided that he wanted Jonathan off his bus because he had a disability. His goal clearly was to get rid of this young man, who is vulnerable and his mother who is an elderly person. Therefore, the Applications clearly should go ahead.

The individual respondent's submissions on this matter

76Counsel for the individual respondent reviewed the events of May 5, 2013, stressing once again, that the driver was concerned about the stalking that he believed he had experienced for some time and felt that the presence of the apparent stalker on his bus gave him an opportunity to have the individual identified once and for all.

77He described that this was not a unique event and that there are precedents for a supervisor coming to a driver's assistance when there is a concern about a passenger. It was indeed unfortunate that the police were involved rather than a transit safety officer, but this was beyond Mr. Brown's control.

78The transcript of the telephone call and P.C. Schultz's notes, which were accepted as factual by all parties, are indeed the facts. It was P.C. Schultz who told Mr. Brown that Jonathan had a disability. Further, the report of P.C. Schultz's conversation with the transit safety sergeant for GO transit, which was entered into evidence by the applicants, included the following:

"Constable Schultz stated that the driver Robert Brown never mentioned Jonathan's disability. Schultz did not believe that it had anything to do with Jonathan having a disability. Based on Robert's non-verbal's (sic) he felt that Robert was genuinely concerned."

79Mr. Brown agreed to continue the trip with the applicants on board. It was their choice not to do so.

80P.C. Schultz reported that he discussed with Mrs. Schembri that it may be an option to speak with GO Transit and arrange a meeting so all drivers can meet Jonathan and become acquainted, as he is an avid user of the bus. Counsel suggested that P.C. Schultz would not have advised this if he had believed that Mr. Brown had shown any bias towards Jonathan.

81Counsel submitted that there is no evidence or even a suggestion that Mr. Brown had any difficulty with transporting passengers with disabilities or elderly persons. If such had been the case, this would have been noted before.

82Counsel addressed the nature of the job of a bus driver and how lonely it can be. When there are any concerns, real or suspected, the bus driver has no option but to ask for help. Since neither the dispatch office nor the police dismissed his concerns, even though he said that there was no imminent threat, it is unfair to place the full blame for all of these events on Mr. Brown's shoulders.

83In summary, there is no evidence of any Code violation. The applicants' opinions or suspicions are not evidence. Mr. Brown had no hesitation about giving his evidence first, because he knew that there was no Code violation, even though he said how sorry he was about the events that proved so stressful to the applicants. Therefore, the Applications should be dismissed.

The corporate respondent's submissions on this matter

84Counsel for the corporate respondent stated that Metrolinx sincerely regretted the applicants' experience and that this has not changed since the events of May 5, 2013.

85He stated that there has been no evidence presented to the Tribunal by any party that Jonathan Schembri's behaviour or demeanour should have alerted Mr. Brown to the fact that he had a disability. Similarly, there is no evidence of Mr. Brown's intent to discriminate on a Code protected ground.

86Counsel submitted that Mr. Brown stated under oath that he did not know that Jonathan had a disability. The applicants did not challenge this statement in cross-examination. Further, he was not cross-examined by the applicants on the wording of the e-mail and report from the GO Transit Supervisor and which the applicants relied upon as "clear-cut evidence of discrimination". The written report used words such as "it is my impression" "I speculate", "apparent hearing problem", "possible mental issues" and referred to hear-say information about people in Britain.

87Counsel stressed that there was no evidence that Jonathan's appearance or behaviour on the bus were linked in any way to his disability. Autism is an invisible disability and there is no evidence before the Tribunal that Mr. Brown should have been aware of the disability. Mrs. Schembri mistakenly believes that all these events were due to discrimination on the grounds of her son's disability, but has put forward no evidence to the Tribunal to prove this belief.

88The applicants' and the individual respondent's evidence were heard in full. The applicants failed to demonstrate a link between the events, however unfortunate these were, and a Code violation. Therefore, the Applications should be dismissed.

The applicants' rebuttal of these submissions

89Mrs. Schembri responded to these submissions, stating that she remembers very clearly everything that happened on that day, whereas Mr. Brown's evidence is often quite vague. He reminded me again that Mr. Brown's supervisors mentioned "his vague answers". Therefore, she stated that she is clearly the more credible witness.

90She stressed that Mr. Brown's suspicions related to stalking did not justify his behaviour on May 5, 2013.

91Further, she stated that it is obvious that Metrolinx did not investigate these events properly. She reported the events to GO transit on May 7. 2013 and did not contact a lawyer until May 24, 2013, when she had not heard back from GO or Metrolinx. She was not aware of any communication between Metrolinx and her lawyer until well after the time that she submitted the Applications.

92She urged that the hearing continue on the grounds of credibility.

ANALYSIS

93The relevant provisions of the Code are as follows:

1. Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. (1) In Part I and in this Part,

"disability" means

(a) any degree of physical disability, etc.,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,...

"family status" means the status of being in a parent and child relationship.

94The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

95The Code establishes that the applicant in a human rights complaint bears the burden of proving a prima facie case of discrimination. A prima facie case of discrimination is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour, even in the absence of an answer from the respondent (see O'Malley v. Simpson-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at p. 558).

96In order to establish a case of discrimination, the applicants must prove that (1) the male applicant is, or was perceived to be, a member of a group protected by the Code; (2) he was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155, and Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

97If a prima facie case of discrimination has been established, then the onus shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

98The Tribunal does not have the power to deal with general allegations of unfairness or inappropriate treatment. For an Application to continue in the Tribunal process, there must be a basis beyond mere speculation and accusations to believe that the applicant has shown or could show discrimination on the basis of one of the grounds set out in the Code (See Forde v. Elementary Teachers' Federation of Ontario 2011, HRTO 1389).

99There is no dispute that Jonathan Schembri is a person with a disability, as defined by the Code. Mrs. Schembri is Jonathan Schembri's mother and is therefore able to claim family status as a protected ground.

100There is also no question that the events of May 5, 2013, were extremely stressful and unpleasant for the applicants. It is most unfortunate that Mrs. Schembri had to seek medical attention on several occasions for anxiety and stress.

101Having heard the evidence of the individual respondent and the evidence of the applicants, I cannot see any direct link between the events of the May 5, 2013 incident and the Code protected grounds claimed by the applicants.

102The individual respondent openly described his actions and his reasons for them. While these actions may have been inappropriate, I have heard no evidence to suggest that the male applicant's disability was a factor in taking those actions. I do not find that Mr. Brown's awareness of or perception that Jonathan Schembri has a disability was a motivation to have the applicants removed from his bus or be questioned by the police.

103The applicants questioned the individual respondent's credibility, citing the fact that he claimed not to remember every detail of what occurred on that day or at the following meetings and disciplinary actions. I am inclined to believe that, given the circumstances, it is possible that a person who is facing significant disciplinary action and who has been told that he showed very poor judgement in his actions, may not recall exactly what he said when and to whom.

104As far as the reference to "mental disability" is concerned in the e-mail and follow up report written by Mr. Brown's supervisor, Mr. Brown stated that he was sure that he had not used that term to describe the male applicant at any time. While P.C. Schultz may have made reference to "autism" after being told by Mrs. Schembri that her son had this condition, there is no evidence that any of the individuals concerned would have equated autism with a mental disability.

105Further, Mrs. Schembri, who is clearly a staunch advocate for her son, was not able to cite any behaviours or actions on her son's part that would have alerted the bus driver to the fact that Jonathan has a disability.

106Autism is generally deemed to be an invisible or non-evident disability. While persons with autism may, from time to time, act in a manner that alerts others to the fact that they have a disability, there has been no suggestion in these Applications or in the evidence before me that Jonathan Schembri's actions or behaviour or demeanour as he sat on the bus or in general should have alerted Mr. Brown to his disability.

107I noted that when Mrs. Schembri contacted GO Transit on May 7, 2013, to complain about her experiences, she made no reference to discrimination or Jonathan's disability. She cited her reactions to being accused of stalking and of having to identify herself and her son to a police officer as the reason for her complaint.

108It is unfortunate that GO Transit and Metrolinx did not contact the applicants until several weeks after the reported event. It is also most unfortunate that the letter of apology, and the unconditional offer of compensation sent to the applicants' lawyer at that time, was not apparently forwarded to them.

109However, these events do not have any bearing on whether there was any discrimination on a Code protected ground.

110I note that all parties accepted the facts of what occurred on May 5, 2013. The only matter that was in dispute was whether Mr. Brown's actions were because of the applicant's disability or perceived disability.

111I am mindful of the fact that all parties accepted the accuracy of P.C. Schultz's notes. In that, he stated that he informed Mr. Brown of Jonathan's disability. Further, he is quoted as stating that he did not believe (following his discussion with Mr. Brown) that Mr. Brown was aware of Jonathan's disability prior to being informed of it by P.C. Schultz.

112Mrs. Schembri's statement that she is "sure" that Mr. Brown's actions were motivated by his awareness of Jonathan's disability and his determination of getting both applicants off his bus are statements of opinion and do not constitute evidence that Mr. Brown's actions were related to her son's disability.

113For these reasons, I do not accept that the events of May 5, 2013, were due to the individual respondent discriminating against Jonathan Schembri on the ground of his disability and against Helen Schembri on the ground that she is the mother of a person with a disability.

114Since there is no evidence of discrimination on a Code protected ground by the individual respondent and since the original complaint to GO Transit made no reference to discrimination on a Code protected ground, including Jonathan Schembri's disability, the corporate respondents do not have a case to answer.

ORDER

115The Applications have no reasonable prospect of success and are therefore dismissed.