Mary Louise Heyens v. Guelph Community Health Centre and Christina Mann, 2015 HRTO 714

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Louise Heyens

Applicant

-and-

Guelph Community Health Centre and Christina Mann

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: June 1, 2015

Citation: 2015 HRTO 714

Indexed as: Heyens v. Guelph Community Health Centre

APPEARANCES

Mary Louise Heyens, Applicant

Self-represented

Guelph Community Health Centre and Christina Mann, Respondents

Andrew Zabrovsky, Counsel

INTRODUCTION

1This Application, filed on July 17, 2013, alleges discrimination against the applicant with respect to her volunteer work because of disability, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the Guelph Community Health Centre (the “Centre”) discriminated against her when it banned her from the Centre in November 2010 and when it refused to reconsider the ban in 2012. She alleges further that the Centre discriminated against her in June 2013 when it banned her from a volunteer tent at an event in Guelph called the Local Food Fest.

2A summary hearing took place on January 29, 2014. By Interim Decision, 2014 HRTO 467, I dismissed the allegations relating to the November 2010 ban and the refusal to reconsider the ban in 2012 for delay because they were outside of the one-year time limit under the Code. The timely allegation relating to a ban in June 2013 was allowed to proceed. As a result of the findings made in the Interim Decision, the Application was dismissed against all respondents except the Centre and the individual respondent Christina Mann (“Mann”).

3The 2013 allegation proceeded to a hearing on March 6, 2015. The applicant testified on her own behalf. Mann and Kate Vsetula (“Vsetula”) testified for the respondents.

BACKGROUND

The Applicant’s Relationship with the Centre

4The Centre provides a variety of services to members of the community, including one-to-one counselling and support, community outreach, group-based programming, and peer-based programs which incorporate the services of volunteers. One of the Centre’s priority populations is persons who have mental health and addiction issues. The Centre provides services to people who are unable to find assistance elsewhere in the community. Vsetula is employed by the Centre as the Community Health Manager.

5The applicant was diagnosed with Post Traumatic Stress Disorder in 2008. The Centre was aware the applicant had a mental health issue, but did not have specific knowledge of its nature or impact. In the Response filed to the Application, the Centre concedes the applicant has a disability (at paragraph 61).

6The applicant began volunteering with the Centre in September 2009 and continued in that role until November 2010. The applicant volunteered for two programs with the Centre – the Garden Fresh Box Program and the Local Food Fest.

7The Garden Fresh Box Program is a not-for-profit program that supports local farmers by ordering their produce, which is then sold to subscribers who pay a set fee for a box of produce that is delivered to host sites on a monthly basis. The produce is packed by volunteers and delivered by volunteers to host site locations. The applicant was responsible for packaging produce boxes for the Centre’s clients.

8The Local Food Fest is a one-day event to celebrate local food in the Guelph region. It connects local businesses with the public in order to create awareness about local food, including education about food preparation and gardening.

9Until 2012, the Local Food Fest was administered by the Centre and run by Guelph Wellington Local Food (“GWLF”). In 2013, financial administration and oversight of GWLF and the Local Food Fest was transferred to the County of Wellington (the “County”). Mann is employed by the County and is responsible for planning the Local Food Fest. Vsetula is a volunteer member of the steering committee for the Local Food Fest.

10In November 2010, the applicant was terminated from her volunteer role and banned from the Centre because she stole a bag of milk. The applicant was on Ontario Works at the time. The applicant went on Ontario Disability Support Program in February 2011.

11The applicant’s ban from the Centre remains in effect today.

The Applicant’s Volunteer Work at the Local Food Fest in 2013

12The Local Food Fest took place on June 23, 2013. There were approximately 40-50 volunteers at the Local Food Fest. Volunteers signed-up for specific volunteer positions and received a Volunteer Orientation Package (the “Package”). On the day of the event, volunteers went to the volunteer area to sign in, and to pick up their volunteer t-shirt and name tag.

13There were approximately 55 exhibitors at the Local Food Fest. Exhibitors included farmers, restaurants and local businesses. For example, there was a turkey farmer, strawberry farmer, plant farmer, restaurants, caterers, bakeries and local agencies including the Garden Fresh Box. Many of the exhibitors had two or more people with them. In terms of numbers, there were approximately 120 people exhibiting at the Local Food Fest.

14The applicant volunteered with one of the exhibitors at the Local Food Fest – Chalmers Community Service Centre (“Chalmers”). The applicant was scheduled to volunteer from 11 to 1. When the applicant arrived at the Local Food Fest, she went to the Chalmers table. Her role was to hand out pamphlets and answer questions.

15At some point during her volunteering, the applicant was invited to get water or juice at the volunteer tent. She went to the tent to get a piece of fruit or a drink. The applicant was approached by the individual respondent Mann and told she could not be in the tent. Mann allowed the applicant to keep the food that she had taken.

16The applicant returned to the Chalmers table, but felt very uncomfortable because of what had happened in the volunteer tent. The applicant left the event around noon.

ANALYSIS

17The applicant believes that she was discriminated against when she was banned from the Centre in 2010. She believes further that she was excluded from the volunteer tent at the Local Food Fest in 2013 because it was an extension of the original ban. She asserts the respondents knew about her disability and as a result, should have imposed a lesser sanction than a permanent ban from the Centre and by extension, from the volunteer tent at the Local Food Fest.

18The respondents assert the applicant’s disability had nothing to do with her exclusion from the volunteer tent. They state the reason she was unable to access the volunteer tent was because she was not a Local Food Fest volunteer. Further, they say there was no adverse treatment because the applicant was permitted to take the food that she obtained in the volunteer tent. I do not accept the respondents’ submission that there was no adverse treatment. The adverse treatment was telling the applicant she could not be in the volunteer tent. The issue is whether the applicant’s disability was a factor in the decision to exclude her from the volunteer tent.

19The applicant’s perception that she was denied access to the volunteer tent because it was an extension of the original ban from the Centre is understandable. Indeed, the Centre’s position on the summary hearing was exactly that. At the hearing, the Centre took a different position. It asserted the applicant was not permitted to be in the volunteer tent because she was a volunteer for an exhibitor, not for the Local Food Fest.

20When asked why the Centre’s position had changed between the summary hearing and the hearing, counsel for the respondents stated that at the time of the summary hearing a Response had not been prepared and he was not aware that the Centre was no longer in charge of the Local Food Fest in 2013.

21The applicant acknowledges that she was not a Local Food Fest volunteer. Her evidence is consistent with the list of volunteers provided by the respondents. The applicant’s name is not on the list.

22The Package provided to Local Food Fest volunteers states light refreshments will be available in the volunteer area. The Package also states additional food would be available for purchase by the many food vendors and exhibitors attending the Local Food Fest. The Package states that more than 50 vendors and exhibitors were attending the event. This is consistent with the evidence of Vsetula regarding the number of exhibitors at the event.

23The difference between the applicant and the Local Food Fest volunteers is that the applicant’s work was tied to an exhibitor, not to the operations of the Local Food Fest. The Local Food Fest volunteers were hands-on event volunteers who handled the logistics of running the event. Their jobs included: fencing and tent set-up; set-up and dishwashing; exhibitor organizer; cooking demo facilitator; parking; beer tent wristband sales; floaters; greeters; parking; garbage monitor volunteer area; children’s area helper and site clean-up and tear-down. The applicant, on the other hand, represented Chalmers, an exhibitor, by handing out pamphlets and answering questions.

24Vsetula testified that exhibitors were not permitted to access the volunteer tent because it was not sustainable for the Local Food Fest to provide refreshments for that number of people. Further, many of the exhibitors themselves offered food for sale.

25In cross-examination, the applicant conceded that Mann may have told her the volunteer tent was only for Local Food Fest volunteers. She acknowledged that she was not a volunteer. I accept the evidence of Vsetula that the Local Food Fest could not afford to provide refreshments for 50 exhibitors plus their own volunteers. This would entail providing food for 120 more people than the 50 Local Food Fest volunteers.

26I find it is more probable than not that the applicant was excluded from the volunteer tent because she was not a Local Food Fest volunteer. Her status as a volunteer for an exhibitor was the reason she was not permitted to access the volunteer tent. Further, Mann told the applicant she could not be in the volunteer tent. Mann is an employee of the County and any direction she gave was on behalf of the County. As such, the decision to ban the applicant was not made by the Centre.

27Finally, there is no evidence to link the applicant’s disability with her exclusion from the volunteer tent. Although the applicant provided a doctor’s note on the summary hearing which states the applicant’s mental health issues were causative factors regarding the applicant’s behaviour in 2010, there is no evidence that the applicant’s mental health played any role in the incident in 2013.

28For these reasons, I find that the applicant has failed to establish that her disability was a factor in the decision to exclude her from the volunteer tent at the Local Food Fest in 2013. As such, the Application is dismissed.

29Although I have dismissed the Application, the applicant’s perception of discrimination is understandable. The Centre’s initial position in this case was the applicant was banned from the volunteer tent because it was an extension of the original ban from the Centre. It took that position even though the Centre was not running the Local Food Fest in 2013 and the ban itself was restricted to the Centre’s premises. The Local Food Fest did not take place at the Centre. The Centre is aware the applicant has a disability. The applicant believes the Centre should have considered her disability before meting out a permanent ban. As a result of the ban, the applicant is no longer permitted to volunteer at the Centre, nor is she able to attend field trips with her grandchildren at the Centre. During the hearing, the applicant said “this was the first time that the Centre talked to her”. The Centre’s refusal to talk to the applicant about the permanent ban from the Centre contributed to the applicant’s belief that discrimination was at play when she was banned from the volunteer tent. Although her perception was not borne out by the evidence, it is not surprising that she formed that belief in these circumstances.

Anonymization Request

30The respondents request that I anonymize Mann in this decision in the event the allegation of discrimination is dismissed. The applicant asserts that if Mann is anonymized, that she should be anonymized as well. The respondents object to the applicant’s request for anonymization because they submit there is nothing special about this case that would warrant anonymization of the applicant’s name.

31The Tribunal’s Practice Direction On Anonymization of HRTO Decisions (Effective April 2014) provides that, except in the case of an applicant who is a minor, anonymization will only be granted in exceptional circumstances. As stated in this Practice Direction:

The HRTO may also anonymize the name of a party or a participant to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so (Rule 3.11). Such an order is only made in exceptional circumstances.

While all requests for anonymization are considered on a case-by-case basis, the HRTO’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that “human rights applications often include personal information” and thus it will look for “exceptional conditions of sensitivity or privacy necessitating anonymity” before granting such an order…

The HRTO has granted a request for anonymization where there were specific threats to personal safety, where there were parallel criminal proceedings arising from the same facts and relating to an alleged sexual assault, and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis. (emphasis in original)

32In this case, the individual respondent requests anonymization because decisions can be found on-line by potential future employers. The respondents submit that in the event the Tribunal finds no wrongdoing, Mann’s name should be removed to prevent any possible negative impact arising from the fact that she is named as a respondent in a human rights decision.

33In my view, the fact that a decision may be searchable by potential employers is not a sufficient reason to anonymize a party’s name. As the respondents concede, there was no earlier request to remove Mann as a respondent because of the nature of the allegation against her. I do not agree that the mere fact that an allegation is dismissed provides a sufficient basis upon which to anonymize a party. To accept that argument would mean parties could potentially be anonymized in all cases where allegations of discrimination are dismissed. This would deny the public the opportunity to see how the Tribunal addresses the parties before it. The importance and value of an open and transparent human rights system is far greater than a vague and undefined harm caused by the fact that the decision is in the public realm. It is also worth noting that Mann’s name currently appears in the summary hearing decision. To anonymize essentially after the fact based on the outcome of a hearing is contrary to the Tribunal’s Practice Direction that anonymization occur only in exceptional circumstances. The fact that an allegation is not made out is not an exceptional circumstance.

34For these reasons, Mann’s request for anonymization is dismissed. As the applicant’s request for anonymization was only in the event Mann was anonymized, it is not necessary for me to address her request.

ORDER

35The Application is dismissed.

36The parties will not be anonymized in this Decision.