HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Songja Hasselsjo
Applicant
-and-
Horizon Utilities Corporation and Mearie Group
Respondents
DECISION
Adjudicator: Maureen Doyle
Indexed as: Hasselsjo v. Horizon Utilities Corporation
APPEARANCES
Songja Hasselsjo, Applicant
Self-represented
Horizon Utilities Corporation and Mearie Group, Respondents
Charles Pettypiece, Counsel
Introduction
1The applicant filed an Application alleging that the respondents discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.
3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence that the respondents’ alleged actions were due to any ground alleged by the applicant.
Summary Hearing Process
4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) 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 and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.
6The 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 or 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 or the evidence is not disputed by the applicant.
7However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.
8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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 a breach of the Code.
9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.
Factual Background
10The applicant lives in an apartment where there have been several power outages in the last few years. She sleeps with the aid of a CPAP machine and states that if power to her machine is interrupted overnight, she faces an increased risk of stroke. In her Application, she alleges that the respondents have discriminated against her on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, sex, gender identity, gender expression, family status, and marital status, and she alleges reprisal.
11In particular, the applicant states that there was a power outage on August 10, 2015 at 2:30 AM and that she woke up in darkness. She states that the power came back on at 3:45 AM, after one hour and fifteen minutes. At the summary hearing, she alleges that she previously settled a disagreement with the respondents on the basis that they would do everything possible to prevent future power outages, and that if there was a power outage they were to do their best to make sure that it did not last too long. She stated that the August 10, 2015 power outage was the first outage which affected her since 2012. She alleges that this power outage indicates that the respondents are guilty of very cruel disregard for her human rights, as she is a senior, living alone on a low income. At the summary hearing, she stated that while she believes the power outage was based on all of the grounds she alleges in her Application, she is “more focused on” the grounds of disability and age.
12At the summary hearing, the applicant alleged that the respondents had not done “everything possible” to prevent the power outage, and she believes it lasted too long. She stated that she would not say that the respondents’ actions were intentional, but she believes that they were negligent. She alleged that they have had her “medical papers” since 2012.
13Additionally, she takes issue with the fact that in the course of Small Claims Court proceedings she initiated against the respondents, due to previous outages, the respondents violated her human rights when they threatened to garnish her old age pension in respect of court-ordered costs, and she alleges that this was discrimination on the basis of age. Further, she alleges that the fact she was served with court documents on a Sunday was discrimination on the basis of creed.
14At the hearing, she alleged that the respondents’ lawyer is young and does not care about the fact that she lives on a pension. She also alleged that he did not show any consideration by having legal papers served on her on a Sunday.
15At the summary hearing, the applicant was also asked how she would establish that the respondents had reprised against her. While not entirely clear, it appears that she alleges that when she took them to court, the respondents relied upon her signed 2012 release in court, and they press to have her satisfy a 2015 court order for costs made against her. It appears that she asserts that she is living under a threat, and it makes the respondents guilty of reprisal under the Code. She stated that she is South Asian, and that her country of origin is South Korea and she alleges that the respondents are aware of her race and country of origin.
16With respect to the grounds of race and country of origin, at the summary hearing, she stated that she thinks she was discriminated on these bases as someone who was self-represented in the court system of Ontario, making reference to the above-noted settlement she signed with the respondents in 2012.
Findings
17Even if I accept the facts with respect to the power outage, as put forward by the applicant as true and provable, I must find that the Application stands no reasonable prospect of success under the Code. Even if I accept that the applicant’s power was out for one hour and fifteen minutes on August 10, 2015, and the outage caused her CPAP machine to shut down during that time period, and that the shutting down of her CPAP machine while she is asleep (though she did not allege that she remained asleep during this period, stating rather that she woke up in the dark) could place her at increased risk for a stroke, and even if I were to accept that the respondents did not do everything possible to avoid a power outage (an allegation I note they deny), there is no reasonable prospect that that the applicant would be able to demonstrate that any action or inaction on the part of the respondents in these circumstances, would amount to a violation of the Code. The applicant has established no evidentiary link between the respondents’ alleged actions and the various grounds of discrimination cited in her Application.
18Additionally, even if I accept the facts with respect to the pressure to pay the court-ordered costs and the delivery of legal documents on a Sunday, as put forward by the applicant as true and provable, I must find that the Application has no reasonable prospect of success. Even if I were to assume that the respondents showed no regard for the fact that the applicant, a pensioner, lives on a limited income, this would not establish that the respondents pressed for payment of the amount owing due to her age. Again, the applicant has not indicated how she would establish an evidentiary link between the respondents’ alleged actions and her age. Similarly, even if I were to assume that the respondents showed no regard for the day of the week that the applicant received legal documents, this would not establish that the respondents knew of her creed or took any action against her due to her creed.
19Accepting that someone experienced an adverse incident does not include accepting the applicant’s assumptions or beliefs about why the event happened. Though the applicant was given the opportunity at the summary hearing to indicate what evidence she would rely upon to establish that the respondents’ alleged actions were due to the numerous grounds of discrimination she cited in her Application, she did not indicate any evidence she would be able to point to which would show that any adverse incident arose from discrimination.
20With respect to the applicant’s allegation of reprisal, the reprisal section of the Code only applies to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. The applicant has not described any of these circumstances in relation to her allegation of reprisal by the respondents. She did not indicate how the respondents’ alleged actions would amount to reprisal under the Code and I find that her allegation of reprisal contrary to the Code has no reasonable prospect of success.
21As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. 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 for example Leong v. Ontario (Attorney General), 2014 HRTO 311.
22In view of all of the above, I find that this Application has no reasonable prospect of success, and it is dismissed.
Order
23For the above reasons, the Application is dismissed.
Dated at Toronto, this 12th day of October, 2016
“Signed by”
Maureen Doyle
Vice-chair