HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derek Hilborn Applicant
-and-
Canadian Babbitt Bearings and Ben Pach Respondents
DECISION
Adjudicator: Keith Brennenstuhl Date: May 31, 2016 Citation: 2016 HRTO 743 Indexed as: Hilborn v. Canadian Babbitt Bearings
APPEARANCES
Derek Hilborn, Applicant Wesley Jamieson, Counsel
Canadian Babbitt Bearings and Ben Pach, Respondents Daniel Atwell, Counsel
1The applicant filed an Application alleging that the respondents discriminated against him contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).
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 there is no reasonable prospect that it will succeed.
3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success.
Summary Hearing Process
4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) 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 and usually before a Response is filed, 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. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.
6The test that is applied at the summary hearing stage is whether an application has no 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 evidence to the contrary or the evidence is not disputed by the applicant.
7However, and significantly, 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 if 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, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.
8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), 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 a breach of the Code.
9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.
Background
10These Applications, which have been consolidated, allege discrimination with respect to employment because of disability contrary to the Code.
11The narrative in both Applications is identical. Most of the narrative contained in the Applications describes incidents leading up to a workplace physical altercation, which led to the applicant’s termination. At the end of the narrative, it is stated that many of the applicant’s co-workers and supervisors were aware of his disability, that he has been harassed by co-workers about the disability and that he reported the harassment to his supervisors. It states that he does not think anyone was reprimanded for this alleged harassment and the corporate respondent has neglected his human rights.
12Instead of filing their Response to the Applications, the respondents filed a Request for Order During Proceedings seeking an extension of time to file a Response and an Order directing the applicant to particularize his Application. Among other things, the Tribunal ordered:
The applicant must provide full particulars of all the alleged incidents of harassment including the times when he alleges he “let it drop”. These particulars should include: the names of persons who were allegedly aware of the applicant’s disability and how and when they were made aware; the names of persons who allegedly harassed him; details of the form of harassment such as what was said; details of when the alleged harassment occurred; and details of when he reported the harassment and to whom. The applicant will provide an amended Application including these particulars with 21 days of the date of this Interim Decision.
13The narrative in the amended Application essentially repeated the narrative contained in the original Applications. The amended Application failed to identify persons who were allegedly aware of the applicant’s disability and how and when they were made aware. He failed to identify persons who allegedly harassed him or provide details of the form of harassment or details of when the harassment occurred or details of when he reported the harassment and to whom.
14Following the filing of the Response, the Tribunal on its own initiative directed that a Summary Hearing be held to determine whether the Applications should be dismissed on the basis