C.M. v. Catholic Children’s Aid Society Hamilton Ontario, 2016 HRTO 298

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.M.

Applicant

-and-

Catholic Children’s Aid Society Hamilton Ontario

Respondent

DECISION

Adjudicator: Daniel Randazzo

Date: March 4, 2016

Citation: 2016 HRTO 298

Indexed as: C.M. v. Catholic Children’s Aid Society Hamilton Ontario

APPEARANCES

C.M., Applicant

Self-represented

Catholic Children’s Aid Society Hamilton Ontario, Respondent

Carole Jenkins, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on May 2, 2013 alleging discrimination with respect to Goods and Services on the basis of disability, creed, family status, marital status and reprisal.

2By Case Assessment Direction (“CAD”) dated October 2, 2014, the Tribunal directed that a summary hearing be held in this matter by teleconference. The CAD directed that a half-day hearing be held to determine if the remaining allegations, in particular the allegations that the respondent discriminated against the applicant by refusing to change the applicant’s visitation time to accommodate her disability and the allegation of reprisal should be dismissed as having no reasonable prospect of success. The CAD also directed the parties to file any document or submissions that it intended to rely upon at the summary hearing.

Background

3The applicant made several allegations of discrimination under the Code concerning her relationship and interactions with the Catholic Children’s Aid Society (“CCAS”). Pursuant to a judicial decision made in a family law (custody and access) matter, access and visitations between the applicant and her child were to be through and supervised by the CCAS. In her application to the HRTO the applicant made the following allegations:

a. The applicant alleged that she has been forced to attend CCAS for supervised visits despite the fact that she, her child and her ex-spouse are not catholic.

b. The applicant alleged that the CCAS did not accommodate her severe allergies.

c. The applicant alleged that she has been discriminated against her due to her physical deportment. With respect to this allegation the applicant alleges that the CCAS refused to change her visitation time by 15 minutes to allow her to find suitable parking given her disability.

d. The applicant alleged discrimination based upon family status in that she was treated differently as a single mother and because her ex-spouse has a support system to assist him she is treated differently.

e. The applicant alleged reprisal in that she has been threatened that she may never see her son again if she were to bring legal action against the CCAS and further claims that her visitations with her son have been canceled as a reprisal for bringing legal action against the CCAS.

4By Interim Decision, 2014 HRTO 308, dated March 10, 2014, I dismissed the allegations that related to discrimination based on religion, family status and disability (allergies) as an abuse of process. The remaining allegations, as referenced in paragraph 2 above, are the subject matter of this summary hearing. These allegations include the allegation that respondent CCAS refused to change the applicant’s visitation time to accommodate her disability and the allegation of reprisal.

5Prior to the commencement of the summary hearing, the applicant advised that she did not receive notice of the summary hearing. The applicant advised that it was her understanding that the summary hearing was scheduled in July not June. After reviewing the Notice of Hearing with the parties and hearing the parties’ submissions on the issue, the applicant indicated that she wanted to and agreed to proceed. The respondent had no objection to proceeding.

Argument

6At the summary hearing, the applicant argued that she had an injury to her hip which limited the distance she could walk. Due to her limitation the applicant wanted to park at the front entrance of the CCAS which would reduce the distance she had to walk. The parking at the front entrance of the CCAS was restricted in that you could not park there between the hours of 4:00 p.m. and 6:00 p.m. The applicant alleges that she requested that her visitation times either end before 4:00 p.m. or commence after 6:00 p.m. thereby allowing her to park at the front entrance and reducing the distance she had to walk. This request was refused. The applicant also alleges that she was also refused permission to park in the CCAS back parking lot. These actions, the applicant argues, were a failure to accommodate her disability. When asked how she would prove this allegation the applicant advised that the CCAS was aware of the injury to her hip and aware that she could not walk long distances without significant pain. The applicant could not point to any particular document which indicated that she had limitations walking and could not point to any particular document which could establish that she communicated her disability to the CCAS and requested an accommodation for that disability. The applicant did state that she had given letters to people within the CCAS (letters which presumably could substantiate her claim) but those letters have disappeared. The applicant indicated that she could verbally testify to her disability and verbally testify to the fact that she communicated the need for accommodation to the CCAS.

7With respect to the allegation of reprisal the applicant submits that her visitations were canceled because she brought an application before the HRTO. The applicant argued that the Application was filed on May 2, 2013 and following that date many of her visitations were canceled by the CCAS.

8When asked how she intended on proving this allegation, the applicant directed my attention to a court order that granted her access, with supervision, to see her son three days a week and suggested that the failure of the CCAS to grant her access three times a week was an act of reprisal. The CCAS, the applicant submits, did not allow her three days a week and that the CCAS did not try to help arrange those visitations. The applicant acknowledged that during the time period of May 2013 to August 14, 2013 she was represented by counsel and her interactions and communications with the CCAS during this time period were made through her counsel.

9The respondent had prior to the summary hearing filed extensive material providing a chronology of the parties’ history, relationship and interactions. The correspondence between the CCAS, the applicant and the applicant’s counsel at the time, refer to the applicant’s severe allergies and do not reference or mention the applicant’s restrictions due to her injured hip. I note that the allegation concerning the applicant’s severe allergies was dealt with in the first summary hearing.

10The applicant acknowledged that during the time period of May 2013 to August 14, 2013 her employment situation changed which required her to cancel several access appointments. The applicant disagrees with the CCAS (and the Court decision) that she did not follow the appropriate procedure or protocol with respect to the cancelation of access appointments. The applicant submits, and for the purposes of the summary hearing I accept that, she followed the CCAS protocol and then the Court ordered procedure with respect to the cancelation of access appointments.

DECISION

11The test on a summary hearing is whether the Application has a reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing so as to assess whether the Application should be dismissed in whole or in part on the basis of no reasonable prospect of success:

In some cases, the issue at a summary hearing may be whether, assuming all of 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 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

12The role of the applicant in the summary hearing is to describe to the Tribunal the evidence they intend to rely on to support their belief that they experienced discrimination. The Tribunal’s role is to consider whether the allegations fall under the Tribunal’s authority and whether there is evidence which will reasonably be available to support the allegations. Where an applicant believes that she has been the victim of discrimination, but is unable to point to evidence which would support that belief, an application will be found to have “no reasonable prospect of success”.

13While the primary focus in the summary hearing is on the applicant’s evidence, the respondent’s explanation may be considered where the parties agree on the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

14The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

15At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. At this stage, the Tribunal assumes that the applicant is telling the truth unless there is clear evidence to the contrary which the applicant does not dispute. However, that does not mean that the Tribunal accepts the applicant’s assumptions and beliefs about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s assumptions and beliefs that the unfair treatment they experienced arises from a prohibited ground under the Code. Making this connection is an important part of proving discrimination.

16In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that the ground played a role in what they experienced. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success.

17If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that an application has no reasonable prospect of success, it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of an application will move ahead, while part is dismissed.

18The question that I must decide is whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between events and the grounds upon which he or she makes a claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the event and the Code ground.

19Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, applications may be found to have no reasonable prospect of success. As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17, 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.

20In the matter before me, the applicant could not point to any document or evidence, other than her own testimony, that, on a balance of probabilities, could establish that she advised or informed the CCAS of her restrictions due to her hip injury, provided the CCAS with medical evidence substantiating her claim and no evidence, that she, on her own behalf or through her counsel, who was retained to represent her during this time period, requested an accommodation of her injury. When asked how she intended to prove this allegation the applicant indicated that she had medical evidence to substantiate her claim. However, the medical evidence was not provided to the CCAS at the relevant time. Furthermore, when asked how she would prove that she requested an accommodation for her injured hip, the applicant indicated that there were “letters” but that she did not retain copies after they were submitted to the CCAS. I note that all of the documentation provided by the applicant to the CCAS describes her disability in terms of her severe allergies without referencing her restrictions due to her injured hip.

21The relevant time frame with respect to the claim of reprisal is from May 15, 2013 (the date the CCAS received notice of the application) to August 14, 2013. During this time period the applicant was represented by counsel. The applicant acknowledged during the summary hearing that all communication, until August 14, 2013, between the CCAS and herself was through her counsel. The documents and correspondence throughout this period indicate that the CCAS and the applicant’s counsel were actively attempting to make appropriate arrangements for visitations. These communications continued through mid-July 2013 to August 14, 2013, a period in which the applicant was no longer represented by counsel. In order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate.

22In many cases in which a summary hearing is held, applicants are not in a position to point to any evidence beyond their own strongly held suspicions to support their belief that a respondent’s actions were linked to a Code ground. As indicated above, for the purposes of the summary hearing, I accept that many of the applicant’s supervised visits were cancelled. However other than the applicant’s strongly held beliefs, she could not direct me to any other evidence that would support her belief that the CCAS’s actions in canceling the visits were intended as a reprisal.

23I understand that, and it is apparent from the volumes of material filed, the applicant found her relationship and interactions with the CCAS to be difficult, stressful and perhaps at times overwhelming. However, based on the materials filed with the Tribunal and the applicant’s submissions at the summary hearing, I find that there is no reasonable prospect that she will be able to establish a violation of the Code in this case. I find that the applicant has not pointed to any evidence that would establish discrimination based on disability or reprisal.

ORDER

24I dismiss the remaining allegation that the respondent discriminated against the applicant due to her disability and that the allegation of reprisal as having no reasonable prospect for success.