Sieluzycki v. Ontario Court of Justice, 2016 HRTO 962

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Sieluzycki

Applicant

-and-

Ontario Court of Justice

Respondent

DECISION

Adjudicator: Jennifer Khurana Date: July 21, 2016 Citation: 2016 HRTO 962 Indexed as: Sieluzycki v Ontario Court of Justice

APPEARANCES

Michael Sieluzycki, Applicant Self-represented

Ontario Court of Justice, Respondent Rina Li, Counsel

Introduction

1The applicant filed an Application alleging discrimination in the provision of services on the basis of family status and marital status contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2The Tribunal issued a Notice of Intent to Dismiss the Application on the basis that the Application is outside the Tribunal’s jurisdiction because a review of the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.

3The applicant filed submissions in response to the NOID. By Case Assessment Direction (“CAD”), the Tribunal found that it was not plain and obvious that the Application is outside the Tribunal’s jurisdiction. The CAD also 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.

4The summary hearing was held by telephone conference call on April 15, 2016. The applicant attended as did counsel for the respondent.

5For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

Summary Hearing Process

6The 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.

7The 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.

8The 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.

9However, 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 whether 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.

10As 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.

11Having 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.

Factual Background

12The applicant went to a family court processing centre to apply for a restraining order against his mother, father and brother. The counter staff refused to process his application and told the applicant that the persons against whom he was seeking a restraining order are not “spouses”. The counter clerk advised the applicant to go to the criminal court division instead to apply for a peace bond and to talk to legal aid or duty counsel. The applicant told the clerk that he did not want to make this a criminal issue, that he is not a child and that he wanted the application processed. The applicant alleges that the clerk refused to process his application and denied him services on the basis of his family status and marital status as a single man.

Findings

13Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application stands no reasonable prospect of success under the Code. Even if I assume that the applicant attempted to file an application for a restraining order and that the respondent refused to process his application because it did not consider the individuals named to be “spouses”, the facts as alleged by the applicant cannot reasonably be considered to amount to a Code violation.

14As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, 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. See also Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389.

15At the summary hearing, the applicant was given the opportunity to clarify his allegations and to explain why he believed the respondent refused to process his application for a restraining order because he is a single man and what evidence he intended to bring at a hearing to establish a link between the allegations raised and a right protected under the Code. The applicant largely restated his allegations and explained that it is because he asked to have his application processed and was denied service that his human rights were infringed.

16The applicant presented two main reasons why he believes he was discriminated against because he is single: 1) the applicant believes that he met the statutory requirements for the issuance of a restraining order and that the counter staff should have processed his application; and (2) the applicant believes the respondent did not follow up appropriately or assist him with his application.

17After the hearing, the applicant sent the respondent and the Tribunal additional submissions setting out the reasons for which he requested restraining orders against his mother, father and brother. The applicant relies on sections 29 and section 46 of the Family Law Act, R.SO. 1990, c.F.3 (the “Act”) to support his position that the respondent should have processed the application under the legislation. The applicant also believes that the respondent court clerk could not refuse to accept his application pursuant to Rule 5 of Ontario Regulation 114/99 of the Family Law Rules under the Courts of Justice Act, R.S.O. 1990, c.C.43.

18Section 29, under Part III of the Family Law Act, R.SO. 1990, c.F.3. deals with Support Obligations, and reads as follows:

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

19Section 46 of the Act identifies individuals against whom a restraining order may be made.

46(1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

20The applicant’s position is that, as he has been living with his family members, they fall within the language of section 46(2)(b) of the Act. That section provides for the issuance of restraining orders against an individual other than a spouse or former spouse of the applicant if the person is “cohabiting” with the applicant or has done so for any period of time.

21The applicant’s interpretation of the legislation ignores that s.29 of the Act pertains to support obligations, and that both s.29 and s.46 specify that the individual must “cohabit” with the applicant. “Cohabit” is defined in the Act, and “means to live together in a conjugal relationship, whether within or outside marriage”.

22In my view, the applicant’s situation did not fall within the circumstances in which a restraining order could be granted based on these provisions of the Act. The applicant has provided no information that could reasonably establish that the clerk was not simply following the requirements of the statute in refusing to process the application.

23The applicant also alleges that the respondent did not follow up appropriately or assist him with his application. The respondent submits that it is has no record in its system of the applicant’s application at the processing centre nor can it find a reference to the family members the applicant wanted to name in the restraining order. The applicant does not know the name of the clerk who served him and was unsure of the date he attended the courthouse. The respondent notes that there are many reasons why a court clerk may refuse to process an application, including for non-payment of the service fee. Without particulars of the alleged incident, the respondent submits that it is not even clear why the application was denied.

24When the respondent investigated the applicant’s case, it found email correspondence confirming that the supervisor of Court operations contacted the applicant on October 15, 2015 in response to the applicant’s inquiry about the status of his application. The respondent offered to assist the applicant in person, noting that if his documents were in order, his application would be processed. The respondent provided a copy of this email correspondence to the Tribunal.

25The applicant acknowledged that the respondent offered to meet and that he did not follow up because he did not feel it was necessary. He felt that if he could not go through the “regular route”, there was no point in going back to the courthouse. He submits that the email exchange about his inquiry constitutes evidence of the respondent’s evasive behaviour and lack of interest in addressing the situation.

26The facts as put forward by the applicant do not support his claim that the respondent did not appropriately follow up with him or assist him. In any case, even if the facts did support the applicant’s allegation about the respondent’s failure to assist him, he has not pointed to any information that could reasonably show that his marital and/or family status was a factor in any inappropriate follow up or assistance.

27The applicant has made bald and unsupported allegations and has not pointed to evidence of any link between the respondent’s alleged refusal of service and his family status and/or marital status. In my view it is clear that this Application has no reasonable prospect of success and must be dismissed.

Order

28For the above reasons, the Application is dismissed.