Rots v. Elizabeth Fry Society, 2015 HRTO 96

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Rots

Applicant

-and-

Elizabeth Fry Society and Joan (Johanna) Maria Simpson

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: January 22, 2015

Citation: 2015 HRTO 96

Indexed as: Rots v. Elizabeth Fry Society

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 8, 2014.

2On December 10, 2014 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appears to be outside the Tribunal’s power to decide. The applicant was directed to respond to the issues raised in the NOID by no later than January 23, 2015. The NOID advised the applicant that failure to respond to the NOID may be considered an abandonment of the Application and it might be dismissed for that reason.

3The NOID also stated:

• a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by either respondent.

• your completed Application, as filed against Joan (Johanna) Maria Simpson, does not appear to raise an issue the HRTO has the jurisdiction (power) to resolve as follows:

the Application does not appear to allege discrimination with respect to any of the social areas identified in the Code (services, goods and facilities; accommodation (housing); contracts; employment; membership in vocational associations). See Noor v. Midyanta Community Services, 2012 HRTO 375, MF v. Child and Family Services of Timmins and District, 2009 HRTO 979.

4In response to the NOID, the applicant advised she was being harassed by the respondent, the Elizabeth Fry Society (“the corporate respondent”), through a worker there named Michelle.

5With respect to the personal respondent, the applicant states she received a letter from the Crown Attorney's office in Kingston that she needs to sue her sister and therefore it is clear that she infringed her rights.

ANALYSIS AND DECISION

6An application will only be dismissed at a preliminary stage, before it is delivered to the respondent, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381.

Application Against the Personal Respondent

7Having considered the applicant’s Application and her subsequent filing, I find that the applicant has failed to make any allegations of Code-related discrimination against the personal respondent. The applicant has not alleged any facts that make any link between her claims against her and a Code ground. The Tribunal does not have the power to deal with general allegations of unfairness (see Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17) nor does it have the broad jurisdiction of the courts, which can, for example, deal with general claims of contractual breaches or tortious wrongdoing.

8I find it plain and obvious that the allegations of discrimination against the personal respondent are not linked to a Code ground and so do not fall within the Tribunal’s jurisdiction.

Application Against the Corporate Respondent

9Although the narrative is not clear, it may establish a link between the alleged actions of the corporate respondent and the disability of the applicant. In light of this, I am of the view that the Application is not plain and obviously outside of the Tribunal’s jurisdiction and it would not be appropriate to dismiss it on the grounds set out in the Notice of Intent to Dismiss.

10However, 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 corporate respondent need not file a Response.

11Rules 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.

12Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all 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.

13The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

14The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. 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. No witnesses will give evidence during the summary hearing.

15If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

16A copy of the Application and the applicant’s submissions with respect to the NOID are delivered to the respondent with this Interim Decision. The corporate respondent need not file any materials or a Response to the Application unless directed to do so by the Tribunal. The corporate respondent must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered.

17A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

18The applicant has commenced another Application against the same corporate respondent (Tribunal File No. 2014-19091-I) which has been separately ordered for summary hearing. These matters will be scheduled together because the parties and issues are the same.

19The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

order

20The Application against the personal respondent is dismissed for lack of jurisdiction.

21The Application against the corporate respondent will not be dismissed for lack of jurisdiction.

22The Tribunal will hold a half-day summary hearing by conference call. The respondent must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered. The Registrar will then schedule the summary hearing. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.