Michael Woods v. Carman Kidd and Doug Walsh, 2016 HRTO 1539

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Woods

Applicant

-and-

Carman Kidd and Doug Walsh

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: November 30, 2016

Citation: 2016 HRTO 1539

Indexed as: Woods v. Kidd

APPEARANCES

Michael Woods, Applicant

Self-represented

Carman Kidd and Doug Walsh, Respondents

Michael Birnie, Counsel

Introduction

1The applicant filed an Application alleging that the respondents reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, he alleged that the respondents reprised against him by making a complaint against him to the police in regards to his repeated communications with the City of Temiskaming Shores and its employees.

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 it has no reasonable prospect of success.

3A summary hearing was held by teleconference on November 2, 2016. For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

Summary Hearing Process

4The 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.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code can leave a person with significant financial and emotional damage, not to mention a good deal of frustration. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

6The test that is applied at the summary hearing stage is whether an application lacks a 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 or uncontested evidence to the contrary.

7However, 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 whether the 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 that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

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 discrimination on the basis of one of the grounds alleged in the Code.

9Having set out this basic legal framework, I now turn to the factual background of this particular case.

Factual Background

10During the 2014 municipal elections in Temiskaming Shores, the personal respondent, Carman Kidd, stated that he would be on the job 24/7. The applicant began making numerous calls to Mr. Kidd, including at his home number, to complain about various matters including the maintenance of City roads.

11In February 2015, Mr. Kidd wrote to the applicant stating that he had received messages from the applicant at all hours of the day and night. He advised the applicant that some of the calls were rude, harassing or inappropriate. Mr. Kidd noted that the applicant had recently contacted his wife at his home number and that his demeanour on the call was rude and disrespectful. In the letter, he advised the applicant that he had filed an incident report with the Ontario Provincial Police. He also informed the applicant that, until further notice, neither staff nor Council would be responding to the applicant’s inquiries.

12In February 2015, the police advised the applicant not to communicate with city staff or the mayor. In October 2015, the applicant initiated a civil claim against Mr. Kidd, claiming that he had abused his power by issuing the February 2015 letter and also violated his rights under the Code and the Canadian Charter of Rights and Freedoms.

13On January 14, 2016, the personal respondent, Doug Walsh, once again contacted the police to report harassing communications from the applicant. The police notes filed by the applicant indicate that the police’s investigation revealed that the applicant communicated with the City via e-mail, letters, personal visits and repeated intoxicated voicemails several times since 2014.

14The police charged the applicant with making harassing phone calls to the respondents. He was released on the following conditions: that he abstain from communicating directly or indirectly with the respondents except through legal counsel or for court-related purposes; that he abstain from communicating directly or indirectly with all City of Temiskaming Shores employees; that he not attend at city hall except for certain specified reasons; and that he not attend at the public works department.

15In this Application, the applicant alleged that the respondents reprised against him when they complained to the police about his behaviour a second time in January 2016. He alleged that the respondents contacted the police with the intention to reprise against him for filing his civil claim in October 2015 which references the Code. When I asked the applicant what evidence he intended rely upon to support his reprisal claim, he referred to a transcript of the interview the personal respondent, Doug Walsh, gave to the police. Among other things, in the statement, Mr. Walsh stated that the applicant had filed a civil lawsuit against the mayor for not being available 24/7 as per his campaign.

Findings

16Even if I accept the facts put forward by the applicant as true and provable, I find that his allegation of reprisal stands no reasonable prospect under the Code.

17In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code. See Noble v. York University, 2010 HRTO 878.

18The issue before me is whether the applicant’s reprisal claim has a reasonable prospect of success. I find there is no reasonable prospect that the applicant will be able to establish that the respondents reported his behaviour to the police as retaliation for his civil claim rather than solely for an ongoing legitimate concern about his repeated communications with the City and its employees.

19While Mr. Walsh did note the applicant’s civil claim in his interview with police, he did not refer to the human rights aspect but instead to the fact that the applicant filed the claim against the mayor for not being available 24/7. In this context, I find that there is no reasonable prospect that the applicant will be able to establish that the respondents contacted the police with the intention of retaliating against him for the civil claim rather than solely due to a concern about the harassing communications for which he was independently charged by the police. Moreover, the respondents had already contacted the police about the applicant’s conduct a year or so earlier. This was before he filed his civil claim which references the Code. The applicant did not provide any information that could reasonably lead to the conclusion that the respondents’ reasons for contacting the police a second time was different from their reasons for calling the police the first time.

20For the above reasons, I find that the applicant’s reprisal claim stands no reasonable prospect of success under the Code.

Order

21For the above reasons, the Application is dismissed.