Tracy Lynn Higgins v. Catholic Children’s Aid Society and Debra Robichaud, 2016 HRTO 415

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Lynn Higgins

Applicant

-and-

Catholic Children’s Aid Society and Debra Robichaud

Respondents

DECISION

Adjudicator: Aida Gatfield

Date: April 1, 2016

Citation: 2016 HRTO 415

Indexed as: Higgins v. Catholic Children’s Aid Society

APPEARANCES

Tracy Lynn Higgins, Applicant

Self-represented

Catholic Children’s Aid Society and Debra Robichaud, Respondents

Mark Ellis, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of creed, family status and reprisal. The purpose of this decision is to address whether the Application should be dismissed in whole or in part on the basis that it has no reasonable prospect of success.

PROCEDURAL BACKGROUND

2The Application was filed on September 28, 2015. By Case Assessment Direction dated December 3, 2015, the Tribunal, on its own initiative, directed that a summary hearing be scheduled for this matter pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The respondents were not required to file a Response to the Application. The Application along with the Case Assessment Direction was delivered to the respondents. The summary hearing was held by teleconference on March 21, 2016.

Summary Hearing

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

5The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At 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. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

6The 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. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

7Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. If the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

9The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about 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.

11The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could assist the applicant’s case.

12Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

13The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically, the applicant was asked what evidence she has or may be reasonably available to her to establish a nexus between the respondents’ conduct and the prohibited grounds of creed, family status and reprisal.

14I note that much of the applicant’s submissions, oral and written, related to her objections with respect to decisions related to her access to her children. She disagreed with the terms and frequency of access to her children and the court’s ultimate decision that she not have access to her children. Allegations with respect to the individual respondent are based on the fact that she was the individual responsible for supervising the applicant’s access visits with her children. The respondents pointed out that decisions related to the care of the Applicant’s children were made by the courts, not the respondents.

15When asked what evidence she would rely on at a hearing with respect to each of the grounds enumerated in her Application the applicant advised as follows.

16With respect to the ground of creed, the Applicant stated that she is a Christian. Her evidence of discrimination based on creed would be that an Intake Worker of the Catholic Children’s Aid Society (the “Society”) repeated in an affidavit to the court that the applicant had stated that her children are a blessing and that she wanted to go to church. The applicant alleged that this information was used to say that “she was unwell.” According to her, the fact of putting it in an affidavit was discriminatory. It was her belief that the respondent Society did not want her going to church with her children. Further, she stated that many limitations were put on her in relation to her children. She wanted the plan of care (for her children) to include going to church. This was not allowed.

17When asked how the respondents discriminated against her on the basis of creed with respect to housing, as this is the area cited in her Application, she stated that the plan of care indicated that she needed housing but the respondent Society did not give her support in this regard. She sought a letter, which was denied. She had letters of support from others yet she still was not able to get housing.

18The respondents submitted that the respondents were doing their job as required by law; evidence was placed before a judge and the judge made a decision. It is the judge’s decision about which the applicant is complaining. Her real issue is access to her children not housing. The respondents submitted that the Society does not control housing or sponsor housing.

19With respect to the ground of family status, the applicant advised that she feels that she is being discriminated against because she is a single mom and is vulnerable. She feels that the Society did not give her a letter of support for housing because she is a single mom. She was not able to point to any evidence beyond her belief.

20When asked what evidence the applicant would be relying on at the hearing in support of her allegation of reprisal, the applicant asked, “What does reprisal mean?”

21I explained that in order to prove reprisal at a hearing, there must be evidence to establish a threat or an action by the respondents was intended as retaliation for asserting her human rights under the Code. See Noble v. York University, 2010 HRTO 878.

22When asked what actions the respondents engaged in that she says amounted to reprisal, she stated that it was “just the whole thing starting with the Children’s Aid Society.” She stated that she felt that “their intentions were not good.” She further objected to the length of the court process and expressed that she was not heard by the judge and feels that she did not get a fair trial.

23As noted above, the Application alleges discrimination in the area of housing on the basis of creed, family status and reprisal. Having considered the written and oral submissions, the applicant has not pointed to any evidence which could establish a link between the grounds alleged and the respondents’ actions. The applicant’s complaint appears to be with the processes of the child welfare system. The crux of her complaint is her disagreement with the decision to deny her access to her children. While I appreciate the applicant’s position, the Tribunal does not have a general power to deal with allegations of unfairness. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code. In order to proceed with the Application, the applicant must be able to point to some evidence beyond her own speculation and belief that any treatment afforded to her by the respondents was because of one of the prohibited grounds listed in her Application. She has not done so.

24Accordingly, the Application is dismissed.