Cummins v. Shuniah (Municipality), 2017 HRTO 1378

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Cummins

Applicant

-and-

Corporation of the Municipality of Shuniah

Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky

Date: October 17, 2017

Citation: 2017 HRTO 1378

Indexed as: Cummins v. Shuniah (Municipality)

WRITTEN SUBMISSIONS

Catherine Cummins, Applicant

Self-represented

Corporation of the Municipality of Shuniah, Respondent

Paul Greenwood, Representative

1The applicant filed this Application alleging discrimination in housing on the grounds of disability, family status and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondent discriminated against her in the investigation of a complaint about her and her husband’s living arrangements, which ultimately led to their having to move from their residence.

2The respondent requested the early dismissal of the Application under s. 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application.

3The applicant had filed a complaint with Ombudsman Ontario alleging, in essence, that the respondent improperly advised her that she could no longer live in a house owned by other individuals because she and her husband were not related to the owners. She also alleged that the prospect of the respondent taking enforcement actions against the owners ultimately led to her and her husband having to move from the home in question.

4The Ombudsman’s office investigated the applicant’s complaint and issued a report on November 29, 2016, indicating that they would “not be taking any further action at this time in response to your complaint.”

5The applicant submitted that the Ombudsman’s office had advised that their investigation “could only deal with issues of policy and procedure” and that, if she were dissatisfied with the outcome of their investigation, she could apply to this Tribunal to address the issues of discrimination, harassment and reprisal she had raised.

decision

Request to Dismiss under Section 45.1

6Section 45.1 of the Code states:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7Section 45.1 contains a two-part analysis: (1) was there a “proceeding” within the meaning of the Code, and, if so, (2) did the proceeding appropriately deal with the substance of the Application.

8In my view, the investigation by the Ombudsman’s office did not constitute a “proceeding” within the meaning of the Code. The Tribunal has held that, for the purposes of section 45.1, a “proceeding” is a “judicial or quasi-judicial proceeding characterized by guarantees of procedural fairness and adjudicator independence and impartiality.” See, for example, Bechard 2011 HRTO 1191, Metroland 2009 HRTO 200 and Robert 2010 HRTO 2256.

9While the Ombudsman’s investigation involved contacting both parties, and was likely independent and impartial, in my view the process could not be understood as a “judicial or quasi-judicial” process “characterized by guarantees of procedural fairness.” The report ultimately produced also provided little, if any, analysis of the substance of the applicant’s complaint.

10I, therefore, find that the Ombudsman’s investigation did not constitute a “proceeding” within the meaning of section 45.1 of the Code.

11Even if this were the case, given that the Ombudsman’s report did not address the substance of the applicant’s complaint and did not address the human rights issues raised in the current proceeding, I find that the Ombudsman’s investigation and/or report did not appropriately deal with the substance of the Application.

12I, therefore, find that the Application should not be dismissed pursuant to section 45.1 of the Code.

Summary Hearing

13However, in reviewing this matter, it appears that the narrative setting out the incidents of alleged discrimination fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Tribunal does not have jurisdiction over general allegations of unfairness unless the unfairness is connected, in whole or in part, to one of the grounds specifically set out in the Code. See, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389.

14Regarding the allegation of “reprisal’, the Application fails to explain how the respondent’s behaviour constitutes a reprisal within the meaning of s. 8 of the Code. That is, the Application fails to explain how the respondent’s conduct was related to any of the following: claiming or enforcing a right under the Code, instituting or participating in proceedings under the Code, or refusing to infringe the right of another person under the Code (section 8). See, for example, Mirea v. Canadian National Exhibition, 2009 HRTO 32 and Chan v. Tai Pan Vacations, 2009 HRTO 273.

15In my view, therefore, it is appropriate to schedule a summary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

16Where it appears that all or part of an application may have no reasonable prospect of success, the Tribunal may determine it is appropriate to hold a “summary hearing” on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application. It also provides the Tribunal with the opportunity to hear argument from the parties before it makes its decision about whether all or part of the Application has no reasonable prospect of success.

17No witnesses are called to testify on the issue of whether an application has no reasonable prospect of success and the parties are not expected to submit documents for the purpose of a summary hearing. Instead, the Tribunal will make its decision based on the materials already filed by the parties and their submissions in the summary hearing.

18If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

Next Steps

19The Registrar will schedule a half-day summary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing.

20The parties are not required to file any further documents or case law in advance of the summary hearing. However, if the parties do wish to refer to any further documents or case law at the summary hearing, they must deliver to each other and file with the Tribunal copies of any these further documents and/or cases no later than 35 days after the date of this CAD. The parties should note that they are not required to file copies of Tribunal cases for summary hearings since the Tribunal has access to its own case law.

order

21The respondent’s request that the Application be dismissed under section 45.1 of the Code is denied.

22The Tribunal shall schedule a half-day summary hearing by teleconference to address whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

23I am not seized of this matter.