HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allen Rosario
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Rosario v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Allen Rosario, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Safety and Correctional Services, Respondent
Indira Sawh, Counsel
1This Application alleges discrimination with respect to services because of race, colour, place of origin, disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On May 4, 2015, the Tribunal directed, on its own initiative, that a summary hearing would be held to determine if this Application should be dismissed as having no reasonable prospect of success and/or for delay. All of the parties participated at the summary hearing.
3The allegations which form the basis of this complaint occurred during the applicant’s incarceration at the Thunder Bay District Jail. The applicant explains that he believes that various guards encouraged inmates to harass and intimidate him. The applicant also states that he was forced to share a cell with inmates who were dangerous and wished him harm. The applicant also takes the position that he was subjected to health and safety hazards and that he was once referred to as a “political refugee” as opposed to a “political prisoner” on at least one occasion for which he does not provide a date. During the call the applicant explained that he would often tell people at the jail that he was a “political prisoner”. The applicant also states that he was subjected to degrading, humiliating behaviour because he was strip searched in front of a camera. The applicant believes that he was being harassed because of complaints that he made against the police.
The Law
4The Tribunal explains the nature of summary hearings in the decision of Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
5With respect to the reprisal allegation, in the decision of Noble v. York University, 2010 HRTO 878 at para. 33, the Tribunal sets out the legal elements of establishing a claim of reprisal under Section 8 of the Code, as follows:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
Decision
6In this case the issue is whether the applicant can prove on a balance of probabilities a link between the incidents of alleged discrimination and the alleged prohibited grounds in the Code. In Villella v. Brampton (City), 2011 HRTO 1085, the Tribunal held that the Code is not designed to remedy all instances of unfairness. In dismissing that Application because it had no reasonable prospect of success the Tribunal held as follows:
The applicant does not allege any facts that could give rise to a finding of Code-based discrimination. His principal grievance is with customer care and service quality at the court. Other than a bald assertion that because he and other members of his family are of Italian origin and they allegedly have experienced poor service at the court, there are no additional facts or allegations, which, if accepted as true, provide the necessary nexus between the impugned conduct and Code grounds.
The Code is not designed to remedy all instances of differential treatment, poor service delivery or professional misconduct. The alleged treatment must be linked in a substantive way to a Code ground...There must be at least some objective facts and circumstances to support the theory linking the respondents' action with the Code.
7During the conference call the applicant demonstrated that he was still very upset by what had happened to him during his period of incarceration. He believes that he was treated unfairly by the respondent. The only allegation, if true, which may be Code related is the applicant’s assertion that he was called by an employee on an undisclosed date a “political refugee” as it may relate to his citizenship and/or place of origin. However, in my view, and in light of the fact that the applicant would often refer to himself as a “political prisoner” and that this allegation is vague, it would be insufficient evidence on its own to establish a breach of his rights under the Code.
8Having considered this matter I am of the view that the applicant does not have a reasonable prospect of successfully establishing that any of these allegations are linked to a prohibited ground under the Code, or that the respondent’s employees intended to reprise against him. The applicant believes that the respondent’s employees harassed and permitted other inmates to harass him because he had complained about the police in the past, however the applicant has no evidence to substantiate this belief. The Tribunal has repeatedly stated in the past that it does not have the jurisdiction to deal with issues of general unfairness that are not related to the Code. I am of the view that the applicant has no reasonable prospect of establishing that the respondent’s alleged conduct was linked to a prohibited ground under the Code.
9For these reasons this Application is dismissed.
Dated at Toronto, this 29th day of January, 2016.
“signed by”
Geneviève Debané
Vice-chair