Sprague v. Yufest, 2016 HRTO 642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Sprague Applicant

-and-

Avi Yufest Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: May 12, 2016 Citation: 2016 HRTO 642 Indexed as: Sprague v. Yufest

APPEARANCES

Andrew Sprague, Applicant Self-represented

Avi Yufest, Respondent Gina Brannan, Counsel

1This is an Application dated September 29, 2015 alleging discrimination with respect to services, goods and facilities and/or employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated October 22, 2015, this matter was referred for a summary hearing. The summary hearing proceeded by teleconference on February 17, 2016, at which time I heard the parties’ oral submissions. I also have reviewed and considered the written submissions and materials filed by the parties for the purpose of the summary hearing.

Background

3In my view, the allegation raised in this case is really quite straightforward. The events at issue in this proceeding relate to the recent contest for the leadership of the provincial Progressive Conservative party. The applicant was a volunteer scrutineer for the Patrick Brown campaign, and attended for this purpose on May 3, 2015 at a polling station for the provincial ridings of Willowdale and York Centre. The respondent was the assistant returning officer for the York Centre polling station.

4The applicant alleges that he experienced discrimination by the respondent because of disability when he was asked by the respondent to leave the polling station shortly after he asked why the polling station was not accessible. I appreciate that the respondent and the chief returning officer for the York Centre riding have filed statements saying that the applicant was not asked to leave the polling station, but rather state that an issue was raised with a representative of the Patrick Brown campaign as to the number of scrutineers it was allowed to have. The respondent states that it was the Brown campaign representative who made the decision as to which of the scrutineers to remove. That, however, is an issue of credibility between the parties that would need to be decided on the basis of oral evidence at an in-person hearing, and is not something to be determined at a summary hearing.

5Rather, in my view, the issues for consideration at the summary hearing stage are: (1) whether the applicant’s allegation, even if true, falls within one of the areas covered by the Code; and (2) whether, on the basis of the applicant’s allegation, he can establish a link to the protected ground of disability under the Code.

6I will address each of these issues in turn.

Is there no reasonable prospect that the applicant can establish a link to a protected area covered by the Code?

7The first issue for me to consider at the summary hearing stage is whether there is no reasonable prospect that the applicant can establish a link to a protected area covered by the Code. The applicant has alleged discrimination “with respect to services, goods and facilities” within the meaning of s. 1 of the Code, and also has alleged discrimination “with respect to employment” within the meaning of s. 5(1) of the Code. While the Application also raised an allegation of “harassment” by the respondent in violation of s. 5(2) of the Code, it is clear in this case that the applicant’s allegation does not support that the respondent engaged in a “course of conduct” which is a required element of the definition of “harassment”.

8The respondent submits that he was not providing any service to the applicant. That may be true. But section 1 of the Code does not require the person who is alleged to have violated an applicant’s rights to be providing a service to the applicant. Rather, the requirement is that the alleged discrimination have occurred “with respect to” a service. In my view, I cannot find at the summary hearing stage that the applicant has no reasonable prospect of success in establishing that the voting process operated by the provincial Progressive Conservative party falls within the scope of “services” within the meaning of s. 1 of the Code. Whether or not that is the case is, in my view, a matter better left for determination by the adjudicator at an in-person hearing in this matter on the basis of oral evidence and a full factual record. In addition, in my view, I cannot say at this stage that the applicant has no reasonable prospect of establishing that, by acting as a volunteer scrutineer for one of the leadership campaigns involved in the process, he was involved with or participating in any service being provided through the voting process. And, if in fact it was the respondent who told the applicant to leave the polling station as the applicant alleges, I cannot find that the applicant has no reasonable prospect of success in establishing that the respondent was the person responsible for interfering with or impairing the applicant’s ability to continue to be involved with or participate in any service that was being provided. As indicated above, I appreciate that it is a matter of dispute between the parties as to whether in fact it was the respondent who asked the applicant to leave the polling station, but that is a matter to be determined at an in-person hearing on the basis of an assessment of credibility.

9With regard to the issue of whether the applicant’s allegation falls within the scope of s. 5(1) of the Code, once again I appreciate that the respondent was not the applicant’s employer. However, s. 5(1) of the Code does not only protect against discrimination by an employer. It protects against discrimination “with respect to” employment. This Tribunal has held repeatedly that the term “with respect to employment” extends beyond what may traditionally be regarded as employer-employee relationships and that a breach of s. 5(1) of the Code may arise between an employee and other persons who are not “employers” in the traditional sense. The issue in each case is whether there is a sufficient nexus or link to employment in the relationship between the parties: see Ifrah v. National Income Protection Plan Inc., 2014 HRTO 1637 at para. 19.

10I also appreciate that the applicant was acting as a volunteer for the Patrick Brown campaign. There is some Tribunal authority to support that volunteer work may fall within the scope of “employment” as protected under the Code: see Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234 at para. 23. As a result, I cannot find at the summary hearing stage of this proceeding that the applicant has no reasonable prospect of establishing that his work as a volunteer scrutineer falls within the scope and protection of s. 5(1) of the Code. Further, if the respondent was the person who asked the applicant to leave the polling station as the applicant alleges, I also cannot find that there is no reasonable prospect of the applicant establishing a sufficient nexus or link to any “employment” that the applicant may be found to have been engaging in as a volunteer scrutineer, on the basis that the respondent interfered with or impaired the applicant’s ability to continue to engage in any such “employment”.

11Accordingly, I find that at the summary hearing stage of this proceeding, I cannot find that the applicant has no reasonable prospect of establishing that his allegation falls within the scope of the Code’s protections under either s. 1 or s. 5(1).

Does the applicant have a reasonable prospect of success in establishing a link or connection to his disability?

12The applicant relies upon this Tribunal’s decision in C.C. v. J.L. o/a [….] Restaurant, 2014 HRTO 1625 to describe the elements that he is required to prove to establish discrimination because of disability, namely: (1) that he had or was perceived to have a disability; (2) that he received adverse treatment; and (3) that his disability was a factor in the adverse treatment.

13There is no dispute between the parties that the applicant has a disability. There also is no dispute that the applicant attended at the polling station on May 3, 2015 with a service dog, such that I cannot find that there is no reasonable prospect of the applicant establishing that the respondent was aware that he is a person with a disability. In addition, on the same basis as I have described above, I cannot at this stage of the proceeding find that there is no reasonable prospect that the applicant can establish that he received adverse treatment by the respondent, if in fact it was the respondent who asked him to leave the polling station.

14The final issue for determination at the summary hearing stage is whether there is a proper basis to find that the applicant has no reasonable prospect of establishing that his disability was a factor in him being asked to leave the polling station. There is no question that the vast majority of cases before this Tribunal do not involve direct evidence of discrimination, that is that the respondent expressly referenced a protected ground as a factor in the adverse treatment, but rather are proven on the basis of circumstantial evidence, whereby this Tribunal draws an inference that a protected ground was a factor in the context of its consideration of the evidence as a whole.

15The applicant submitted at the summary hearing that he is relying primarily on four factors to establish a link or connection between the respondent allegedly asking him to leave the polling station and the protected ground of disability. First, the applicant relies upon him having raised an issue about the accessibility of the polling station shortly before he was asked to leave. He alleges that he asked why the polling station was not accessible, to which he alleges that the respondent replied with a sarcastic tone, “Did you not see the elevator on the way in?” Second, the applicant relies upon the nature of the respondent’s alleged reply, which as stated above he alleges was sarcastic. Third, the applicant relies upon the timing of the request to leave the polling station, which was shortly after he had raised an issue about lack of accessibility. And fourth, the applicant relies upon the respondent’s alleged knowledge that he was a person with a disability.

16I appreciate the respondent’s submission that the applicant appears to be alleging that he was asked to leave the polling station because he raised a concern about accessibility, as opposed to being asked to leave because he is a person with a disability. However, my understanding of the applicant’s allegation is that he is relying upon the respondent’s alleged response to his concern as a piece of circumstantial evidence in support of an allegation that his disability was a factor in the respondent’s alleged request for him to leave. I further understand the applicant to be relying upon the manner of the respondent’s alleged response, as well perhaps as a later statement alleged to have been made by the respondent asking “Who does he think he is questioning accessibility?”, as other pieces of circumstantial evidence that may support a discriminatory attitude by the respondent towards persons with disabilities.

17I also appreciate that the respondent would provide different evidence at a hearing as to the reason the applicant was asked to leave the polling station and as to who actually made the decision that the applicant was the person who was asked to leave. However, at the summary hearing stage, it is not a sufficient basis to dismiss an Application as having no reasonable prospect of success simply because the respondent has a different version of the events at issue and a different explanation for why certain things occurred. The assessment of the credibility of that differing explanation is a matter best left for determination at an in-person hearing on the basis of oral evidence.

18During oral submissions at the summary hearing, the respondent also raised the issue of what evidence the applicant would rely upon to prove discrimination by the respondent. It appears to me that the applicant largely will rely on his own evidence, although there are other persons who were present at the polling station at the relevant time who may be called as witnesses. However, even if it is only the applicant’s own evidence that would support an allegation of discrimination, the summary hearing stage is not the point in this Tribunal’s process to discount or disbelieve that evidence. That again is a matter for an in-person hearing on the merits of the dispute.

19Having considered the evidence that the applicant points to in support of establishing a link or connection between his disability and the adverse treatment he alleges he received from the respondent, I cannot find that he has no reasonable prospect of success in proving his case at a hearing. Whether or not the evidence the applicant relies upon is ultimately accepted or whether or not the respondent’s alternate explanation is found to be credible are matters to be determined at an in-person hearing on the merits.

Next steps

20While the respondent filed written submissions for the summary hearing, he has not yet been required to file a formal Response to the Application. Accordingly, within 35 days of the date of this Interim Decision, the respondent shall serve on the applicant and file with the Tribunal his Response (Form 2) to the Application.

21Within a further 7 calendar days, the applicant shall serve on the respondent and file with the Tribunal any Reply (Form 3).

22I note from the Application that the applicant has not indicated his willingness to participate in the Tribunal’s mediation process. If the respondent indicates in his Response that he is willing to participate in mediation, then within the time for filing his Reply the applicant shall indicate to the Tribunal and the respondent whether he also is prepared to participate in mediation.

23If both parties agree to participate in mediation, then this matter will proceed to be scheduled for mediation. If not, this matter will be referred to be scheduled for a hearing.

ORDER

24For all of the foregoing reasons, I hereby make the following order:

a. The Application is not dismissed as having no reasonable prospect of success and will proceed further in this Tribunal’s process;

b. Within 35 days of the date of this Interim Decision, the respondent shall serve on the applicant and file with the Tribunal his Response (Form 2) to the Application;

c. Within a further 7 calendar days, the applicant shall serve on the respondent and file with the Tribunal any Reply (Form 3);

d. Within that same time period, if the respondent indicates in his Response that he is willing to participate in mediation, then the applicant shall indicate to the Tribunal and the respondent whether he also is prepared to participate in mediation.