S.F. v. Toronto Transit Commission, 2015 HRTO 978

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.F.

Applicant

-and-

Toronto Transit Commission and Wheel-Trans

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 23, 2015

Citation: 2015 HRTO 978

Indexed as: S.F. v. Toronto Transit Commission

WRITTEN SUBMISSIONS

S.F., Applicant

Self-represented

Toronto Transit Commission and Wheel-Trans, Respondents

Angela Rae, Counsel

1The applicant filed an Application under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) alleging that the respondents discriminated against him because of disability. The allegations contained in the Application are wide-ranging but include allegations that the respondents discriminated against the applicant with respect to the conduct of in-person eligibility interviews and in the way it addresses disabilities where endurance is a factor, as well as mental disabilities which can have physical effects. This Interim Decision addresses the Toronto Transit Commission’s (“TTC”) request that the Tribunal dismiss the Application, or parts of the Application.

2In its Response, the TTC requests that the Tribunal dismiss the Application in its entirety under s. 45.1 of the Code and/or on the basis of mootness. In the alternative, the respondent requested that the Tribunal strike certain allegations that are not linked to an individual trait or characteristic protected by the Code.

section 45.1 request

3The TTC requests that the Tribunal dismiss the Application under s. 45.1 of the Code on the basis of the decision of the Ontario Divisional Court in Cannella v. Toronto Transit Commission, [1999] O.J. No. 2282 (“Canella”) as well as the decision of the Ontario Human Rights Commission in Yanaky v. Toronto Transit Commission (April 4, 2000 File No. SBHE-3YKQR) (“Yanaky”).

4The applicant opposes the TTC’s request.

5Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6As found by the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422, provisions such as s. 45.1 are the statutory reflection of the collective principles underlying the doctrines of issue estoppel, collateral attack, and abuse of process.

7The TTC seeks to characterize the substance of the Application as an allegation that the process used by the TTC to determine eligibility for the Wheel-Trans system is discriminatory and generally unfair. In my view, the substance of the Application is more focused. The substance of the Application is that the TTC discriminated against the applicant by failing to provide him equal access to its services without discrimination both in its assessment of his application for services and in the criteria applied to determine eligibility.

8The applicant was not involved in the Cannella case nor the Yanaky case and therefore these cases cannot give rise to a dismissal under s. 45.1 of the Code. These proceedings cannot be said to have appropriately dealt with the substance of the applicant’s claim that the respondents discriminated against him.

Request to dismiss on basis of mootness

9The TTC also requests that the Tribunal dismiss the Application on the basis of mootness as, in its view, it raises no live issue between the parties. The TTC states that the applicant has admitted that the TTC offered to provide him with a second appeal. It also states that it offered to extend his temporary Wheel-Trans service until the results of his second appeal were known. The applicant advised the TTC that he was unable or willing to accept this offer due to an alleged deterioration of his medical condition. For this reason, the TTC argues that the Application is moot as the applicant has not suffered a loss of access to the Wheel-Trans service because of any action taken by the TTC.

10I do not agree with the TTC that the Application is moot for the reasons set out above. In essence, the TTC’s argument is that there has been no discrimination in this case. This is different from arguing that an Application is moot or that there is no live issue in this case. The live issue is that the applicant claims that the respondents discriminated against him in its assessment of his eligibility for their services through a series of incidents, the last of which occurred on February 7, 2014. This remains the live issue in this case. In my view, the respondent’s claim that any loss of access to its services was not due to their actions, is a claim that there has been no discrimination in this case. It is not properly framed as a claim of mootness.

Request to dismiss parts of the application

11In the alternative, the TTC requests that the Tribunal strike certain allegations that are not linked to an individual trait or characteristic protected by the Code. In particular, the TTC requests that the Tribunal dismiss allegations relating to an alleged misrepresentation by Medisys of the result of the applicant’s appeal interview, the denial of the applicant’s right to video record his interactions with Medisys and a claim that the criteria used to evaluate applications for Wheel-Trans eligibility are vague and non-transparent.

12Although it is difficult to determine at this early stage, I agree with the TTC that these allegations and possibly others contained in the Application may be more in the nature of allegations of unfairness than allegations of discrimination under the Code. However, I find that any requests to strike portions of the Application are best dealt with by an adjudicator assigned to hear the case on its merits and may require the Tribunal to hear evidence before they are determined. Since the parties have agreed to mediation, the Registrar should schedule a mediation in this case. If mediation is unsuccessful, any request to dismiss portions of the Application can be dealt with in the next steps of the Tribunal’s process.

Order

13For the reasons set out above, the Tribunal orders as follows:

a. The TTC’s request to dismiss the Application under s. 45.1 of the Code is denied.

b. The TTC’s request to dismiss the Application on the basis of mootness is denied.

c. The TTC’s request to strike certain allegations on the basis that they are not linked to an individual trait or characteristic protected by the Code, should be addressed by the adjudicator assigned to the case, if mediation is unsuccessful in this case.

d. Since both parties have agreed to mediation, the Registrar will schedule half-day mediation in this case.

14I am not seized of this matter.