Songja Hasselsjo v. Paramed Home Healthcare, 2016 HRTO 1208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Songja Hasselsjo

Applicant

-and-

Paramed Home Healthcare

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: September 14, 2016

Citation: 2016 HRTO 1208

Indexed as: Hasselsjo v. Paramed Home Healthcare

APPEARANCES

Songja Hasselsjo, Applicant

Self-represented

Paramed Home Healthcare, Respondent

Ryan O’Leary, Counsel

introduction

1This Application alleges discrimination with respect to services on the basis of numerous grounds of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated May 10, 2016, the Tribunal directed that a summary hearing be held to determine whether the Application had no reasonable prospect of success.

3The summary hearing was held on August 26, 2016. There are two issues on the summary hearing. The first issue is whether the Application should be dismissed under section 45.1 of the Code because the allegations of discrimination were appropriately dealt with in a settlement of an earlier application before the Tribunal. The second issue is whether the remaining allegations have no reasonable prospect of success.

background

4The applicant receives personal support services from the respondent.

5On February 23, 2016, the applicant filed this Application. The applicant alleges that a personal support worker by the name of Tina started to work with her in 2011. The applicant states she put up with her “ignorances and discrimination”. The applicant alleges that Tina never considered taking the applicant to church. She alleges further that in 2016, the respondent replaced Tina with another worker after the applicant asked Tina whether she had taken some of the applicant’s belongings. The replacement worker smoked. During the summary hearing, the applicant stated the respondent did not respect her preference to have “an Asian worker who did not smoke and who was not as abusive as some of them in terms of stealing and carrying diseases”.

6The applicant filed an earlier application with the Tribunal in 2014. It also dealt with the personal support services provided by the respondent to the applicant. That application was settled on May 7, 2015. The applicant signed a full and final release on May 14, 2015 releasing all claims relating to the services provided by the respondent up to the date of the release. The applicant has filed a breach of settlement application in relation to this settlement.

analysis

Section 45.1

7Section 45.1 of the Code reads as follows:

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.

8Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process. These doctrines are applied to avoid a multiplicity of proceedings on the same issue, and to protect the integrity of the administration of justice, all in the name of fairness. It applies even though the strict requirements of issue estoppel may not be met. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 at paras. 24-25.

9The respondent alleges the allegations were appropriately dealt with in the settlement and that the applicant has filed a separate breach of settlement application in relation to that settlement.

10The applicant alleges the allegations that are the subject of this Application are different because they deal with the respondent replacing the applicant’s personal support worker in February 2016.

11Although the applicant makes reference to 2011 and makes a general assertion that she was subject to discrimination, the central allegation in this Application concerns the respondent changing the applicant’s personal support worker in February 2016. This allegation is not covered by the 2015 settlement and release. The release covers all service-related allegations up to May 14, 2015, the date of the release. Any allegations following that date are not covered.

12As such, the allegation relating to the respondent changing the applicant’s personal support worker in February 2016 cannot be dismissed under section 45.1 of the Code. The issue that remains is whether this allegation has a reasonable prospect of success.

Reasonable Prospect of Success

13The 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.

14The 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.

15The 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 she 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.

16However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why she 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 her possession or evidence that may be reasonably available to her, which tend to support the applicant’s belief that she has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support her allegations, there are no findings made at the summary hearing stage in relation to that evidence.

17The 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.

18In this case, there is nothing to link the respondent’s decision to change the applicant’s personal support worker in February 2016 with a prohibited ground of discrimination. The change in worker occurred after the applicant questioned Tina about whether she had taken some of the applicant’s belongings.

19The applicant asserts the decision to change her worker had an adverse impact on her because of her disabilities. That may be so. However, the law is clear that an applicant must do more than establish a negative impact on an individual in a protected group. The applicant must be able to point to some evidence to support her contention that discrimination played a role in the decision to change her worker. She has been unable to do so.

20There is no question that the applicant is upset by the change in her personal support worker. However, this does not provide a sufficient basis to proceed with the Application. As the Tribunal has stated many times, it has no jurisdiction over claims of general unfairness.

21In the absence of any real or cogent facts linking the decision to change the applicant’s personal support worker with one of the grounds of discrimination relied upon in the Application, the claim is essentially a bald allegation of discrimination based on the applicant’s suspicion and speculation. The Tribunal has dismissed applications in similar circumstances and it must do so here. See Mitchell v. Kerry’s Place Autism Services, 2012 HRTO 834.

22For these reasons, the Application as having no reasonable prospect of success.

ORDER

23The Application is dismissed as having no reasonable prospect of success.