HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Sprague
Applicant
-and-
Beck Taxi Limited
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Sprague v. Beck Taxi Inc.
WRITTEN SUBMISSIONS
Andrew Sprague, Applicant
Self-represented
Beck Taxi Limited, Respondent
Geoff R. Ryans, Counsel
background
1This Application alleges discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant alleges that on December 10, 2014, at approximately 11:15 a.m., he was denied service from a taxi driver, Mahmood Bashir (“the driver”), who was driving a Beck Taxi Inc. car. The applicant alleges he was denied the service because he was accompanied by his dog N.S.D. Flicka (“Flicka”), a certified service dog bred and trained to assist him with the management of a medical condition. On the day in question, Flicka was wearing her purple working vest with, on the top, the notices “National service dogs” and “Please don’t’ pet me, I’m working”, a badge, a picture of a dog and a sign that means please do not touch.
3The respondent provides a taxicab radio dispatch service in the City of Toronto. The respondent denies that it violated the applicant’s Code-protected rights. In the alternative, the respondent argues that, to the extent that the applicant’s Code-protected rights were infringed, it is not directly responsible for the violation and should not be held vicariously responsible for the actions of the driver.
4The Application was scheduled for a hearing on June 10, 2016, but was adjourned pending the filing of the full transcript of a related case, R. v. Bashir, heard and decided by the Ontario Court of Justice on March 17, 2016 (“Bashir”). On June 9, 2016, the respondent filed the transcript with the Tribunal. After reviewing the transcript, the Tribunal decided to hold a summary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
5The Tribunal held the summary hearing on November 22, 2016.
6On November 30, 2016, the applicant wrote an email to the Tribunal requesting that it consider as part of his submissions a November 29, 2016 CityNews Toronto broadcast and article entitled “Former Toronto police officer with PTSD refused by 6 taxis”. The article is about a retired police officer with the Toronto Police Service who has Post-Traumatic Stress Disorder and uses a service dog. It describes repeated incidents where the retired police officer, accompanied by his spouse and his service dog wearing his service vest, tried to hail a taxicab but was denied service. It appears that some taxi drivers looked at them and accelerated away, while others stopped to tell them that the service dog was not welcome. The applicant argues that this situation is similar to his and shows that the situation is not isolated.
7The respondent objects to the request. He argues that the Tribunal’s Practice Direction on Summary Hearing Requests is clear that evidence is not admissible on a summary hearing. He also maintains that an internet news story containing unproven allegations from a stranger to the Application would not be admissible as evidence. Finally, he submits that the issue in the summary hearing is whether the applicant has a reasonable prospect of establishing the allegations in this Application. It is unclear how the news article goes to that issue.
8Although the article referred to by the applicant tells a compelling story, it is a news story about allegations that have not been proven before a tribunal or court, and made by someone who is not a party to this Application. Consequently, I disregard the news story.
submissions
9The applicant submits that there are two issues to be addressed at the summary hearing: the relevance of Bashir to the Application and whether the Application has a reasonable prospect of success.
10The applicant maintains that Bashir is a quasi-criminal case that applied a different and much higher threshold, “proof beyond a reasonable doubt”, than the threshold applied by this Tribunal, “proof on a balance of probabilities”. The applicant contends that the jurisprudence has clearly established that an acquittal is not admissible in a subsequent civil trial to prove that the party did not commit the offence. See Rizzo v. Hanover Insurance Co. (1993), 14 O.R. (3d) 89 (C.A.) (“Rizzo”).
11The applicant argues that, although the decision in Bashir is not binding on the Tribunal, the transcript of the proceeding is relevant and should be permitted in evidence. The applicant maintains that in Bashir the driver has provided his evidence under oath and it is fair and permissible to question him on prior evidence and look at inconsistencies of testimony.
12The applicant argues that the Application has a reasonable prospect of success based on the criteria recently reiterated in Lewis v. Toronto Transit Commission, 2016 HRTO 1200 (“Lewis”). The Tribunal notes at para. 22:
Accepting the applicant’s allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code. By making this finding I am not suggesting that the Application is likely to be successful. In fact, the allegations will be very difficult to prove. However, 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 some evidence which is reasonably available to him which could support his allegations of discrimination and reprisal. 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.
13The applicant submits that the present case is analogous to cases that focus on allegations of racial discrimination where there is no direct evidence that race was a factor. See Peel Law Association v. Pieters, 2013 ONCA 396 and Phipps v. Toronto Police Services Board, 2009 HRTO 877 (upheld in Shaw v. Phipps, 2010 ONSC 2884 and Shaw v. Phipps, 2012 ONCA 155). He argues that there is ample circumstantial evidence to reach the reasonable conclusion, on a balance of probabilities, that the driver unlawfully denied the applicant access to his taxicab and there is a connection between the disability and the refusal of service.
14The applicant maintains that this Tribunal’s jurisprudence supports the position that denying goods and/or services to the handler of a guide or service dog is sufficient evidence to make a finding that the applicant’s disability was a factor in the adverse treatment that an applicant has received. See Smolak v. 1636764 Ontario, 2009 HRTO 1032; Schussler v. 1709043 Ontario, 2009 HRTO 2194; Bourdeau v. Kingston Bazar, 2012 HRTO 393; Hill v. Bani-Ahmad, 2014 HRTO 937; Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433; and Kamis v. 1903397 Ontario Inc., 2015 HRTO 741.
15The applicant submits that he has ample evidence to prove a violation of the Code: the driver was driving his taxicab; the light atop the taxicab was lit to show availability; the driver was alone in the taxicab; the applicant was wearing a dark coloured suit and had a briefcase on his shoulder; the applicant was flagging the taxicab; the driver stopped his taxicab in front of the applicant; the driver turned his head in the direction of the applicant’s certified service dog; the driver immediately drove away from the applicant; and the driver picked up another fare who was standing past the applicant.
analysis and decision
16It is well established jurisprudence that the Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process 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 or the intention by a respondent to commit a reprisal for asserting one’s Code rights. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
17Accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant's belief that he has experienced discrimination. See Dabic v. Windsor Police Service, 2010 HRTO 1994; Wasty v. Lone Wolf Real Estate Technologies, 2013 HRTO 957; Leong v. Ontario (Attorney General), 2014 HRTO 311; Lewis, above.
18It has been said that the threshold for making out a prima facie case of discrimination is not a high one. However, nor is it so low that merely establishing that one has been mistreated and that one identifies with one or more prohibited grounds under the Code will suffice to make out a prima facie case. If that were the case, most people who experienced any kind of mistreatment would have a prima facie case of discrimination under the Code. In order to make out a prima facie case of discrimination, the applicant’s evidence must establish a foundation upon which the Tribunal could find not only that the applicant was mistreated, but that he was mistreated on the basis of a prohibited ground under the Code. Sosoo v. Winners Merchants Inc., 2010 HRTO 1367.
19I have considered the submissions of the parties and their written material. This is a case that requires evidence and analysis to resolve the question of whether the failure to pick up the applicant and his service dog amounted to an adverse treatment because, in whole or in part, of his disability. Accepting the applicant’s allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code. At this stage in the process, it would be premature to dispose of the Application given the fact that the applicant has established that there will be some evidence which is reasonably available to him and could support his allegations of discrimination.
20This matter will require the Tribunal to establish whether the applicant was discriminated against with respect to services because of his disability, and if so whether the respondent is deemed liable for the actions of the driver pursuant to section 46.3 of the Code. As a result, I direct that this matter be set for two days of hearing.
Direction
21For the reasons set out above, I make the following directions:
a. the Application will continue;
b. the Registrar is requested to set this Application for a two-day hearing.
Dated at Toronto, this 20th day of December, 2016.
“Signed By”
Josée Bouchard
Vice-chair