HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Rots

Applicant

-and-

Elizabeth Fry Society

Respondent

DECISION

Adjudicator: Kevin Cleghorn

Date: June 23, 2015

Citation: 2015 HRTO 837

Indexed as: Rots v. Elizabeth Fry Society

APPEARANCES

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Maria Rots, Applicant ) Self-Represented

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1This involves two Applications 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 faciltities and employment on the basis of disability, family status and marital status. The two Applications brought by the applicant are based on identical facts and involve the same party.

2By Interim Decision dated January 22, 2015, the Tribunal dismissed the portions of the Applications involving personal respondents, John Gerald Rots and Joan (Johanna) Maria Simpson, in that the allegations of discrimination are not linked to Code grounds. The allegations as against those personal respondents, therefore, are not within the jurisdiction of this Tribunal.

3The Interim Decision also directed that a summary hearing be held on the remainder of each Application by teleconference. It states as follows at paragraphs 10 and 14 (in part):

However, although the Application makes an allegation that may draw a link between alleged acts of the corporate respondent and a Code-prohibited ground, the applicant may not be able to prove that link. For this reason it is appropriate to hold a summary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

. . . . . . . . . .

The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will rely to prove a link between the respondent’s actions and the grounds cited.

4The Applications under consideration deal with the same subject matter and chain of events. With the dismissal of the Applications as against the personal respondents, the Applications involve the same respondent, the Elizabeth Fry Society, in each instance.

ANALYSIS

Summary Hearings

5Rule 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 winess statements.

6The test is whether there is a reasonable prospect of success. If, after considering the arguments made by the applicant, there is a basis to believe that there is a reasonable prospect of success, the Application shall be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

7In Dabic v. Windsor Police Service 2010 HRTO 199 at paragraphs (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

8The applicant was a resident of the Elizabeth Fry Society, a halfway house type facility, in Kingston, Ontario during the month of August, 2014. She has a medical condition which she describes as hyperthyroidism. She takes a prescription medication for her condition.

9The applicant maintains that during the time she resided at the Elizabeth Fry Society she was treated inappropriately. At various times, staff persons employed by the respondent would not allow her “to fit in” and prevented her from re-integrating into society. She states that those same staff persons contacted the police and the Frontenac Community Mental Health Association on her on several occasions.

10While she resided there, the respondent’s employees would not give her access to her medication, particularly when she left the premises. Once she had departed from the respondent’s facility, she sought to recover her belongings which had been left behind. She has never been able to obtain her belongings from the respondent, despite frequent requests.

The Law

11The Applications themselves and the submissions of the applicant are devoid of particulars of any differential treatment per se. The argument of the applicant is essentially that there can be no other basis for the lack of an appropriate response to her complaints but her disability (she made no other submissions in relation to the other personal characteristics she cites in her Applications). Similarly, her view is that any treatment that she received from the respondent must be discriminatory because it did not meet her expectations in terms of the service or treatment that she should have received.

12It 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 beliefs of the applicant, the intial onus is on her to establish that there is evidence to support her allegations of discrimination in the absence of any such link in her Applications: 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.

13In the instance case, there is an absence of any proposed evidence whatsoever, by the applicant; either direct or circumstantial. She pointed to or offered no evidence which might suggest that other persons resident at the facility of the respondent were treated differently than her. There was no linkage of the referrals that were made (either to the police or to the Frontenac Community Mental Health Association) to any protected ground under the Code. 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 evidence of any sort that links a prohibited ground under the Code with the treatment afforded to her by the respondent or its agents or employees at any time.

14I note that the allegations against the remaining respondent were merely a small portion of the narrative in her Applications. For the most part, her complaints are primarily about her treatment by family members, which portions of the Applications have been dismissed as previously mentioned.

15As 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.

The Tribunal also does not have the general power to decide whether the respondent treated the applicant fairly and appropriately: see Tubquabo v. University of Ottawa 2010 HRTO 477 at para. 6. There is no proposed evidence in any event which establishes a nexus with a proscribed ground of discrimination under the Code. The complaints that the applicant has made against the respondent may be legitimate in some respects, but would have to be resolved in another forum other than this Tribunal.

16If I accept the facts as alleged in the Applications, I am unable to conclude that there is a link between those facts and discrimination on the grounds of any of disability, family status and/or marital status. As opposed to pointing me to any evidence that she could obtain or offer that would support the conclusion that any of the above-mentioned grounds was a factor in the respondent’s treatment of her, the applicant chose to provide a recital of the information previously outlined in her Applications. She did not offer anything by way of evidence, or potential evidence, to support a nexus between her allegations and a prohibited ground of discrimination under the Code, despite the clear wording of the Interim Decsision of January 22, 2015 and a reminder of her need to do just that at the outset of the summary hearing.

DECISION

17For all the foregoing reasons, I have concluded that there is no reasonable prospect that either of her Applications can succeed. Therefore, the Applications are dismissed.