Wasilka v. Grand River Transit, 2017 HRTO 1021

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Wasilka

Applicant

-and-

Grand River Transit and Regional Municipality of Waterloo

Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: August 9, 2017 Citation: 2017 HRTO 1021 Indexed as: Wasilka v. Grand River Transit

APPEARANCES

Mary Wasilka, Applicant Self-represented

Grand River Transit, Respondent Eric Gillespie, Counsel

Regional Municipality of Waterloo, Respondent Richard Brookes, Counsel

Introduction

1This Application alleges discrimination in services on the basis of age contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated May 5, 2017 the Tribunal, directed that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3The hearing took place by teleconference on July 31, 2017.

4As explained more fully below, I find that the Application must be dismissed on the basis that it has 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 in her possession or that may be reasonably available to her, beyond her own belief, that the respondents treated the applicant in a Code related discriminatory manner.

Summary Hearing Process

5The 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, as in this case, 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.

6The Tribunal cannot address allegations of unfairness or mistreatment 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.

7The 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.

8However, 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 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.

9As 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, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

10At the summary hearing, I explained that while I was aware from the materials filed that she would like to challenge the policies of the respondents on behalf of a broader group of people, issues relating to persons other than the applicant herself are not a proper basis upon which to file a section 34(1) application with this Tribunal alleging a violation of the Code. Rather, the issue before the Tribunal is whether the applicant herself has personally experienced discrimination because of her age as a result of the actions of the respondents. This results from the wording of section 34(1) which requires that a person believe “that any of his or her rights…have been infringed…”

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.

Application to the Facts

12The applicant’s narrative in her Application reads as follows:

Grand River Transit sets its fares based on age. This contravenes my right to basic necessities such as food, housing and health care and employment. Grand River Transit provides free public transit to children under 4, veterans, G.R.T. employees, Region of Waterloo employees, mobility plus, and Transit Affordability Pass Program (TAPP). Adults are charged a higher fare in every category despite being low income.

13The parties agreed that reduced fares are available to seniors, elementary and high school students and that for the purposes of the fare structure seniors are individuals 65 and older and adults are persons 20 to 64.

14The applicant indicates that she is 64 and identifies as being low income.

15The applicant’s allegation of discrimination because of age relates to the fare structure which allows for a fare reduction for individuals in a series of age categories whereas individuals between 20 and 64 are not eligible for a fare reduction even if they are low income.

16The Ontario Human Rights Commission, in its “Policy on Discrimination Against Older People Because of Age” explains:

The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice. In many case, differential treatment because of age will clearly be discriminatory. However, in other cases, it may be necessary to consider whether the treatment can be said to constitute “discrimination” in the sense of being something that is protected by human rights law.

Some age-based criteria or qualifications are not based on stereotypes, are not offensive to human dignity and do not target a historically disadvantaged age group. For example, discounts on services for persons under 25 or over 55, retirement schemes that are based on a minimum age combined with years of service and measures aimed at facilitating the transition from full-time employment to retirement would not likely be considered discrimination within the meaning of human rights law and policy.

17In Freemen v. March of Dimes Canada, 2013 HRTO 129, the Tribunal determined at para 22:

Second, Chatham-Kent takes the position that its cascading age policy is a “special program” within the meaning of s. 14 of the Code. In my view, it is not necessary to determine that issue in order to decide this Application. In order to constitute a violation of the Code, an applicant must be able to prove discrimination in a substantive sense: see Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 73 to 91. In the context of the protected group of age, this means that not every distinction on the basis of age necessarily will be regarded as discriminatory. From a substantive discrimination viewpoint, the question is whether the particular distinction has a negative impact on an identifiable group that has experienced historic, political or social disadvantage by perpetuating prejudice or stereotyping. In this context, it is hard for me to see how the applicant has a reasonable prospect of being successful in proving that the group of persons under 50 is an identifiable group that has experienced historic, political or social disadvantage relative to the group of persons 50 and over, or that limiting eligibility to be on a list for access to senior’s housing to persons 50 and older perpetuates prejudice or disadvantage. In fact from a substantive discrimination standpoint, it would appear to me that he opposite is more accurate: see Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999 1 SCR 497, Ontario Human Rights Commission, “Policy on Discrimination Against Older People Because of Age”.

18Similarly, I am of the view, that there is no reasonable prospect that evidence that the applicant has or that is reasonably available to her will prove on a balance of probabilities that persons between 20 and 65 is an identifiable group that has experienced historic, political or social disadvantage relative to the group of persons over 65 and under 20 or that providing discounted transit rates to those over 65 and under 20 perpetuates prejudice or disadvantage.

19For these reasons, I find that the applicant has no reasonable prospect of success of establishing or proving a violation of the Code on the ground of age. Accordingly, the Application is dismissed.