Mahmoud Galal v. Ontario Disability Support Program, 2016 HRTO 807

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahmoud Galal Applicant

-and-

Ontario Disability Support Program Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: June 14, 2016 Citation: 2016 HRTO 807 Indexed as: Galal v. Ontario Disability Support Program

APPEARANCES

Mahmoud Galal, Applicant Self-represented

Ontario Disability Support Program, Respondent Michelle Schrieder, Counsel

Introduction

1The applicant filed an Application alleging discrimination with respect to services because of ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”).

2In his Application, the applicant stated that he is a Muslim Arab who was born in Egypt, but now has Canadian citizenship. He believes that his ethnic origin is the reason that the respondent made the process of receiving Ontario Disability Support Program benefits very difficult. The reason in his Application to support his belief is that his case manager, her manager and the regional manager are all Italian. Presumably, he implies that if they are Italian, then they will discriminate against him because of his ethnic origin.

3With respect to his allegation of disability, the applicant wrote in his Application that he cannot drive or take public transportation, and the respondent refused to communicate with him by email, but ignored his request for taxi vouchers to visit the respondent’s offices.

4By Case Assessment Direction (“CAD”) dated August 14, 2015, the Tribunal stated that the applicant’s allegations could be divided into three categories:

a) The first set of allegations in the Application relate to decisions taken by the respondent in relation to the applicant’s eligibility for Ontario Disability Support Program (“ODSP”) benefits and the Ontario Child Benefit.

b) The second set of allegations relate to the manner in which the respondent treated the applicant including delaying the processing of his application, failing to return his phone calls, requesting further supporting information, etc.

c) The third set of allegations relate to the respondent’s alleged failure to accommodate the applicant’s disability/ies by refusing to permit him to communicate by e-mail and requiring in-person meetings without accommodation.

5The CAD went on to note:

It appears that a number of the applicant’s allegations may stand no reasonable prospect of success in terms of making out a violation of the Code. The applicant is clearly dissatisfied with the services he has received from the respondent. However, the Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination that is prohibited by the Code. Discrimination in the legal sense requires proof that an applicant was treated adversely by a respondent and that the respondent's adverse treatment of the applicant is based, at least in part, on a prohibited ground under the Code.

6The 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.

7As explained more fully below, I find that the allegations in the Application with respect to ethnic origin must be dismissed on the basis that they have no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicion that the respondent’s alleged unfairness to him in processing his claims for benefits had anything to do with ethnic origin. I find, however, that the allegation with respect to the respondent’s requirement that the applicant attend the respondent’s premises may have some prospect of success, depending upon evidence that might be adduced at a hearing. As such, the allegation of discrimination because of disability is not dismissed at this stage.

Summary Hearing

8The 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

9The 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.

10The 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.

11However, and significantly, accepting the facts alleged by the applicant does not mean accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination 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.

12As 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.

Ethnic Origin

13Both in his Application and in his oral submissions at the summary hearing, held on March 17, 2016, the applicant described examples of his caseworker making him go through many steps, and the respondent taking a long time to process his claims for benefits. It was extremely frustrating for him, particularly because he has two children to look after. He said that, generally, when people see his name, they assume that he was not born in Canada. Then, when they hear his accent, they ignore him. However, the applicant did not indicate that he had any evidence to establish that people connected with the respondent do this, or that recipients of a different ethnic origin than his have an easier time receiving benefits. Also, the applicant did not indicate that there was any evidence to support his statement in the Application that the fact the respondents’ employees who he dealt with are Italian means that they treated him badly because of his ethnic origin.

14Even if I accept the facts as alleged by the applicant, that the employees frustrated the applicant’s claims for benefits, I find that the allegation of discrimination because of ethnic origin has no reasonable prospect of success without more evidence than the fact that some employees were Italian. The simple fact of difference in ethnic origin between a service provider and the recipient has no reasonable prospect of successfully establishing discrimination because of ethnic origin. There must be something more beyond speculation on the part of the applicant.

15As noted above, for allegations to advance to a full hearing on the merits, an applicant must be able to point to some evidence that he has, or evidence that may be reasonably available to the applicant, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

Disability

16At the summary hearing, the applicant explained that his allegation of discrimination because of disability relates to the respondent’s refusal to allow the applicant to provide missing documents through email, and the respondent’s insistence in January 2014 - May 2014 that the applicant personally attend at its premises. While the applicant could drive at that time, his physical disability meant using his car on snowy days was very difficult and he particularly experienced pain in his leg while driving in the snow.

17The applicant explained that the first two appointments to meet with his caseworker were on days of snow storms and he therefore missed the appointments. He told her that he could not drive in a snow storm, and asked for taxi vouchers so that he could visit her office without driving. She refused, although he said that he did not tell her the reason he could not drive in snow storms was related to disability. She subsequently suspended his benefits each month until he filed this Application on May 21, 2014.

18The applicant argued that his caseworker ought to have known that the reason he could not attend her office was related to his disability. He argued that the respondent at the very least knew he has a physical disability because he received a letter from the respondent acknowledging that he has a physical disability. The respondent argued that it did not know the reason for his request for taxi vouchers was because of disability-related restrictions, and not because of financial reasons, which the respondent submitted were the reasons actually given by the applicant until May 1, 2014, when he raised disability.

19In its written submissions, upon which the respondent relied at the summary hearing, the respondent noted that the applicant had requested permission to communicate by email because it was easier and faster, and the reason that the respondent refused to allow email communications was because the Ministry’s email system was not secure. (Email is apparently permitted now). The respondent asked ODSP applicants and recipients, including the applicant, to provide documents by fax, mail or by dropping them off at the respondent’s office. The applicant clarified at the summary hearing, however, that the allegation with respect to disability relates to the suspension of the applicant’s benefits on the basis that he would not attend the respondent’s premises. Also, the applicant’s benefits continued to be suspended even after May 1, 2014, when the respondent may have been aware that the applicant’s refusal to attend the respondent’s premises may have been related to his disability.

20In these circumstances, at this early stage in the proceedings, I do not agree with the respondent that there is no reasonable prospect of success for the allegation that the respondent’s requirement that the applicant attend the respondent’s premises in person resulted in discrimination. It is the only allegation which shall be permitted to proceed to a hearing. Evidence will be required about the respondent’s requirement for attendance, and about whether the respondent did know or ought to have known about the applicant’s disability affecting his ability to attend the respondent’s premises. Also, evidence, including medical evidence, will be required to assess whether one of the reasons for which the applicant was unable to meet the requirement that he attend the respondent’s premises was because of his disability.

Order

21For the above reasons, the allegations in the Application pertaining to ethnic origin are dismissed.

22For the above reasons, the Tribunal refuses to dismiss the allegation in the Application pertaining to discrimination on the basis of disability because the respondent suspended the applicant’s benefits when he did not attend the respondent’s premises. Given the applicant’s explanation at the summary hearing that this is the allegation pertaining to the claim of discrimination because of disability, the applicant will not be permitted to pursue any other allegations with respect to disability, unless the Tribunal allows any request to amend his Application.

Next Steps

23Counsel for the respondent identified itself as “Ontario Disability Support Program” in the Response, but it appears that the same organizational respondent has previously identified itself to this Tribunal as a Ministry. The respondent is directed to notify the Tribunal within 14 days as to what exactly its legal name is for the purposes of this proceeding, and as to whether it agrees to mediation. The applicant has already indicated in his Application that he is willing to try to resolve the matter through mediation. Depending on the respondent’s willingness to try mediation, the Tribunal will schedule either a half-day mediation or one day of hearing.

24I am not seized.