Mattison v. Town of Pelham, 2016 HRTO 1121

Human Rights Tribunal of Ontario

BETWEEN:

Eric Mattison Applicant

-and-

Town of Pelham and Sarah Thompson Respondents

DECISION

Adjudicator: Jennifer Scott Date: August 24, 2016 Citation: 2016 HRTO 1121 Indexed as: Mattison v. Town of Pelham

APPEARANCES

Eric Mattison, Applicant Angela Browne, Representative

Town of Pelham and Sarah Thompson, Respondents Terry Hill, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that in January 2013, he was not considered for the position of bylaw enforcement officer with the Town of Pelham (the “Town”) because of these Code grounds.

Background

Allegations of Discrimination

2The following facts are taken from the Application.

3The applicant was involved in a serious motor vehicle accident in March 2001, while acting in his duties as a police officer. He was subsequently diagnosed with Post Traumatic Stress Disorder. In 2005, the applicant was charged with 26 criminal charges and a number of charges under the Police Services Act (the “PSA”). After the preliminary inquiry into the criminal charges, 20 charges were dismissed. Within one year, the remaining charges were withdrawn. The applicant commenced a civil action against his employer and the Attorney General of Ontario. The civil suit was settled. The applicant states there was widespread media attention over this matter and that the media leaked information about his health condition.

4On January 16, 2013, the applicant applied for the position of bylaw enforcement officer with the respondent Town.

5On February 1, 2013, the applicant contacted the human resources manager for the Town, the individual respondent Sarah Thompson, to inquire about interview dates. Ms. Thompson advised the applicant that the Town had received over 65 applications and that the search had been narrowed down to two persons. Ms. Thompson advised the applicant that he was not one of these two people.

6The applicant believes he was discriminated against on the basis of his disability and record of offences in relation to this job application.

Proceedings before the Tribunal

7In a Case Assessment Direction dated June 10, 2013, the Tribunal requested submissions from the parties as to whether it had jurisdiction over the allegations of discrimination on the basis of record of offences. By Interim Decision dated July 4, 2013, 2013 HRTO 1166, the Tribunal held it did not have jurisdiction over the record of offences allegations because the applicant did not allege he was convicted of a criminal offence for which he subsequently received a pardon. The Tribunal dismissed the allegations relating to this ground.

8The applicant sought reconsideration of that decision. The applicant asserted that he had a conviction under the PSA for discreditable conduct in relation to an earlier criminal conviction in 1994.

9By decision dated August 21, 2013, 2013 HRTO 1429, the Tribunal granted the applicant’s request for reconsideration. The Tribunal held the applicant was permitted to rely upon the ground of record of offences in relation to a conviction for discreditable conduct under the PSA. The Tribunal held the applicant could not rely on the 1994 criminal conviction because it was not accompanied by an unrevoked pardon and therefore was outside of the Tribunal’s jurisdiction.

10The hearing of the Application was rescheduled a number of times at the request of both parties. It was finally scheduled for a hearing on June 3, 2016.

11By Interim Decision dated April 29, 2016, 2016 HRTO 573, the Tribunal ordered the applicant to produce his hearing documents. The applicant’s hearing documents were produced on May 6, 2016. The documents included a transcript of a preliminary inquiry on December 20, 2006, involving the 2005 criminal charges against the applicant. The information contained in the transcript is subject to a publication ban.

12The applicant’s hearing documents included various media articles between 2004 and 2010 dealing mainly his 2005 criminal charges, the withdrawal of those charges, the commencement of his civil action and the settlement of that action. One article dated December 11, 2004, refers to eight PSA charges being laid against the applicant. This article states the “applicant suffers from post-traumatic stress disorder”. There is no question that applicant was the subject of a great deal of media attention, primarily in relation to the 2005 criminal charges.

13Finally, the applicant’s hearing documents included medical documents between 2004 and 2006. These documents would not have been in the possession of the respondents and as such, they would have had no knowledge of their contents.

14By Case Assessment Direction dated May 31, 2016, the Tribunal converted the hearing scheduled for June 3, 2016 to a summary hearing to determine whether the Application had no reasonable prospect of success because the applicant was unable to establish that the respondents had knowledge of the Code grounds alleged.

15The summary hearing was conducted by teleconference on June 3, 2016. During the summary hearing, the applicant stated there was widespread media coverage of PSA charges laid against him. The applicant referred to other PSA convictions and requested time to produce documents establishing these convictions. The applicant was given time to produce these documents.

16On July 28, 2016, the applicant filed documents establishing that he was convicted under the PSA for Discreditable Conduct in 1995 and 2000, following criminal convictions. There was no conviction under the PSA relating to the 2005 criminal charges.

Summary Hearing Process

17The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

18The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

19The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

20However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in his possession or evidence that may be reasonably available to him, which tend to support the applicant’s belief that he has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support his allegations, there are no findings made at the summary hearing stage in relation to that evidence.

21The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the Application. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal’s process following a summary hearing, 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.

Analysis

22The term “record of offences” is defined in section 10(1) of the Code as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or

(b) an offence in respect of any provincial enactment. (emphasis added)

23The applicant has provided evidence of PSA convictions in 1995 and 2000. The applicant’s convictions fit within the definition of record of offences under the Code. The issue on the summary hearing is whether the applicant can point to any evidence that the respondents knew about the 1995 and 2000 PSA convictions and his disability when they made the decision not to consider him for employment in January 2013.

24The applicant has pointed to a great deal of evidence that would establish that he was subject to much media attention between 2005 and 2010 because of the 2005 criminal charges, their withdrawal, the civil action and the settlement. Some of the coverage included his family. However, the applicant has not pointed to any evidence that his 1995 and 2000 PSA convictions were part of the media coverage and therefore widely known. As an aside, I would note that the applicant experienced difficulty obtaining proof of his 1995 and 2000 PSA convictions. I am not sure how this information would have been available to the respondents.

25The applicant asserts there was widespread coverage of the PSA charges in 2004/2005. He states it was common knowledge that he had faced a slew of PSA charges because of the smear campaign against him. If the matter proceeds to a hearing, the applicant intends to call a reporter to give evidence about this. The applicant claims that as a result of the widespread media coverage, the respondents would have been aware of his PSA charges. There are difficulties with this claim.

26Widespread media coverage of PSA charges is irrelevant because the issue in this case is whether the respondents knew about his PSA convictions. The applicant has not pointed to any evidence about widespread media coverage about his 1995 and 2000 PSA convictions.

27The applicant asserts that because he was charged under the PSA, there would be the perception that he was also convicted of the charges. He argues a perceived conviction is sufficient to fit within the ground of record of offences. I do not accept this argument. The language in section 10(1) of the Code is very clear. There must be a conviction under the ground record of offences. To find otherwise would mean what whenever someone is charged with a provincial offence, they would be protected under the Code. In my view, this would result in a significant dilution of the Code’s protections.

28Similarly, the applicant has not pointed to any evidence that his disability was publicly known. He relies on an article in December 2004 which states he “suffers from PTSD”. In my view, a 2004 article is an insufficient basis to attribute widespread knowledge of his disability in 2013.

29I accept, for the purpose of this decision, that the applicant may have been known to the respondents when he applied for the bylaw enforcement officer position. The fact that he was known does not mean that the respondents knew about his convictions under the PSA and his disability. He may have been known for other reasons, including the 2005 criminal charges.

30For an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his own suspicions, that could make a claim of discrimination. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See Abedi v. Champlain Hospice Palliative Care Program, 2016 HRTO 570.

31The applicant’s assertion that the respondents had knowledge of his PSA convictions and his disability is purely speculative. The applicant has been unable to point to any evidence that would establish that the respondents had knowledge of his disability and PSA convictions at the time they made the decision not to consider him for employment in 2013. It is for this reason that the Application has no reasonable prospect of success.

Order

32The Application is dismissed as having no reasonable prospect of success.