Daniel v. Peel (Regional Municipality), 2016 HRTO 1159

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Daniel by his Litigation Guardian Dan Daniel

Applicant

-and-

The Regional Municipality of Peel, Malak Wassa, Brock Richardson and Michelle Shelley

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: August 31, 2016

Citation: 2016 HRTO 1159

Indexed As: Daniel v. Peel (Regional Municipality)

APPEARANCES

George Daniel, Applicant

Dan Daniel, Litigation Guardian

The Regional Municipality of Peel, Malak Wassa, Brock Richardson, and Michelle Shelley, Respondents

George Sansom, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination with respect to services because of disability. The applicant’s father is acting as litigation guardian.

2The applicant is 22 years old and described by his father as a person with autism. He lives at home with his parents. He alleges that he is unable to ride the conventional transit and that it is discriminatory to exclude him from the accessible transit system, also operated by the respondent, which is restricted to people who cannot access conventional transit because of their physical disabilities.

3By Case Assessment Direction dated April 22, 2015, the Tribunal set this matter for a Summary Hearing. The CAD indicated that the Tribunal would hear submissions in relation to the test of “no reasonable prospect of success”.

4The 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.

5The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

6The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code requires proof of adverse or unfair treatment which is based, in whole or in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference. The Tribunal may schedule a summary hearing on its own initiative or in response to a request from a respondent.

7At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence the applicant can point to or that may be reasonably available to him/her to support the applicant’s belief that they have experienced discrimination.

8The primary focus in the summary hearing is on the applicant’s submissions. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

9There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process prior to the exchange of disclosure and are determined on the basis that the applicant’s allegations are accepted as true. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success. The applicant’s role is to explain how he or she intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in the application.

10The parties participated in the summary hearing by teleconference on July 31, 2016.

11The respondent, Regional Municipality of Peel (“Peel”), operates TransHelp, which provides door-to-door transit services for people who are physically unable to board public transit vehicles because of their functional mobility issues. Prospective passengers apply and there is an appeal process in the event that a passenger is denied service. The applicant applied for TransHelp but was denied on the basis that he did not fit the assessment criteria: he did not have a physical disability which presented a functional mobility challenge for using public transportation; he did not use a mobility device; and he was physically capable of using conventional transit. The applicant appealed the decision to the three individual respondents who were acting as the Eligibility Appeals Team and was again denied access to TransHelp services. The members of the Eligibility Appeals Team are volunteers who are independent of TransHelp and Peel but are required to apply the assessment criteria.

12The respondents argue that there is no reasonable prospect that the applicant will be able to prove that he has experienced discrimination. The respondents argue that the applicant requires an attendant to assist him in accessing conventional transit rather than access to specialized transit. (See Cannella v. Toronto Transit Commission, [1999] O.J. No. 2282). The respondents also argue that the applicant has been advised about the work that is ongoing to bring the respondent Peel’s transit system into compliance with the Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32, by January 1, 2017 (“ODA”).

13The applicant is unable to take regular transit for a number of reasons including his reactions to the various distractions and sensory experiences that he would regularly encounter on a conventional bus. He argues that the respondents discriminated against him in their assessment of his needs and ability to access conventional transit. The applicant argues that the respondents have an obligation to accommodate him and that it is a burden to force him to obtain the services of an attendant each time he wishes to ride the bus. The applicant argues that the independence and dignity of people with physical disabilities is enhanced by TransHelp services and that he is entitled to be accommodated in the same way. The applicant argues that accessible transit will enhance his dignity and ability to be a part of the community.

14I have considered the submissions of the parties and their written materials. Accepting the applicant’s allegations as true, which I am required to do at this stage, I cannot find that there is no reasonable prospect that he can succeed under the Code against the respondent Peel. This is a case which requires evidence and analysis by the hearing adjudicator to resolve. It will be up to the hearing adjudicator to assess the evidence in light of both the Divisional Court jurisprudence and the activities the respondents are engaging in toward achieving compliance with the ODA. At this stage in the process, it would be premature to dispose of this Application given the fact that the applicant has established that there will be evidence which is reasonably available to him which could support his allegation of differential treatment on the basis of disability.

15I have found, however, that there is no reasonable prospect that the applicant will be able to prove discrimination against the three individual respondents who sat as part of the appeal process. The panel had no authority but to apply the assessment criteria established by the respondent, Peel. The assessment criteria clearly exclude the applicant. The panel had no discretion to exercise which may have resulted in the applicant becoming eligible for TransHelp. For those reasons the Application is dismissed against the individual respondents, Malak Wassa, Brock Richardson and Michelle Shelley.

16The Application will continue to the next stage in the hearing process against the respondent, Peel. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

Direction

17I make the following directions:

• The Application is dismissed against Malak Wassa, Brock Richardson and Michelle Shelley;

• The Registrar is requested to set this Application for a one hearing day;

• If the parties wish to participate in mediation they may advise the Registrar within 10 days of the date of this Interim Decision.