Mark Vincent v. The Corporation of the City of Peterborough, Electrical Safety Authority and Jenn Vautour, 2017 HRTO 912

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Vincent Applicant

-and-

The Corporation of the City of Peterborough, Electrical Safety Authority and Jenn Vautour Respondents

DECISION

Adjudicator: Leslie Reaume Date: July 20, 2017 Citation: 2017 HRTO 912 Indexed As: Vincent v. Peterborough (City)

APPEARANCES

Mark Vincent, Applicant Self-represented

The Corporation of the City of Peterborough, Respondent Alan Barber, Counsel

Electrical Fire Safety Authority and Jenn Vautour, Respondents David G. Cowling, Counsel

1These two Applications were filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability and creed. By letter dated November 22, 2016, the Tribunal indicated that the two Applications were filed at the same time but assigned separate file numbers. The Tribunal also noted that the content and attachments appeared to be virtually identical. The Tribunal directed that both Applications would be dealt with together. The applicant alleges discrimination with respect to housing and services because of disability and his creed as an herbalist.

2The events associated with these Applications are set out in a Case Assessment Direction (“CAD”) dated September 30, 2016. The applicant’s allegations of discrimination arise from a fire that occurred in the unit above him in a two-story apartment building. The City of Peterborough Fire department (“fire department”) responded to the fire. The applicant alleges that the fire department targeted his unit for inspection because he grows marijuana for medicinal use, setting off a chain of events which rendered him without access to his apartment for 90 days. The Electrical Safety Authority (“ESA”) and one of its employees, Jenn Vautour, are also alleged to have engaged in discrimination with respect to events following the fire. The September 30, 2016 CAD indicated that this matter would be scheduled for a Summary Hearing during which the Tribunal would hear submissions on whether the applicant’s allegations have “no reasonable prospect of success.”

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The September 30, 2016 CAD also described the process.

4The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

5The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code requires proof of some form of disadvantage which is based, at least in part, on a ground under the Code, in this case, disability and creed. In other words, the ground must somehow be a factor in treatment experienced by the applicant. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.

6At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence the applicant can point to or that may be reasonably available to him/her to support the applicant’s belief that they have experienced discrimination.

7The primary focus in the summary hearing is on the applicant’s submissions. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

8There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process prior to the exchange of disclosure and are determined on the basis that the applicant’s allegations are accepted as true. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed on the basis of no reasonable prospect of success. The applicant’s role is to explain how he or she intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in the application.

9The parties participated in the summary hearing by teleconference on April 24, 2017. I have considered the submissions of the parties and their written materials.

10In his written and oral submissions the applicant argues that although the fire occurred in the unit directly above him, the fire department singled his apartment out for inspection because he grows marijuana to treat his disability. The applicant alleges that he was treated differently than others occupying the other adjacent apartments. To support his allegations the applicant argues that the cause of the fire, which he says resulted from oil on a neighbour’s stove, was not in dispute and that that there was no reason to inspect his unit. As a result of the inspection fire code orders were issued against the building owner. One of those orders directed the owner to provide the applicant with a proper electrical source to support his legal production of marijuana because the power cords used by the applicant posed a fire hazard. The applicant was shut out of his apartment while repairs were made and unable to grow the marijuana he needed to treat his disability. The fire department argues that the applicant’s apartment was inspected pursuant to statutory authority and that it would have been negligent not to inspect the apartment below where the fire occurred. The fire department argues that the applicant is unable to point to any evidence or any evidence that may be reasonably available to the applicant which would support his belief that the actions taken that day were in any way connected to his disability or creed.

11The September 20, 2016 CAD identified the follow allegations against the Electrical Safety Authority (“ESA”) and one of its employees, Jenn Vautour, which are denied by the respondents:

a. The ESA failed to give him and his landlord timely notice of its orders;

b. The applicant encountered frustration and delays in trying to contact the ESA by telephone;

c. The applicant had to spend $200 to get a copy of the ESA policies;

d. The ESA was negligent in not telephoning Health Canada about the applicant’s medicinal marijuana licence;

e. Ms. Vautour vexatiously requested a copy of the entire injunction order and asked for it to be sent to “her attention”;

f. ESA negligently handled e-mails and had an internal breakdown of communication;

g. ESA wantonly dragged the process on and the applicant had to quote their policies to them;

h. Failed to know how to verify his medical marijuana licence;

i. Ordered air and mould tests and then decided to order only electrical testing;

j. Advised the applicant obtusely that they continue to investigate the issue; and

k. Informed his electricity provider he had moved.

12Accepting the applicant’s allegations as true, which I am required to do at this stage, I find that there is no reasonable prospect that he can succeed under the Code against any of the respondents for the reasons that follow.

13There is no dispute that the applicant’s apartment is in a two-story wood frame building and that the fire department responded to a fire, put the fire out, inspected the building for fire, smoke and water damage, and identified damage to electrical equipment. The applicant’s belief that it was unnecessary to inspect his apartment is not evidence that he was targeted for inspection because of his disability or creed. Following the fire, the ESA ordered the repair of wiring and electrical equipment and followed certain protocols with respect to re-connecting the electricity. Ms. Vautour was a senior inspection representative who communicated with the applicant with respect to those repairs. The fact that the fire inspection led to orders to improve the electrical safety of the applicant’s unit to enable him to continue growing marijuana for his medical needs is also not evidence of discrimination.

14With respect to the delay in getting the electrical service reconnected, the ESA was aware that the Applicant was growing marijuana plants in his property and was following Ontario Electrical Safety Code, 25th Edition, 2012, which sets out the rules related to disconnections, inspections and re-connections. The applicant did not dispute this or the provisions of the ESA’s Controlled Substance Properties Policy which required him to produce a copy of his valid medical marijuana licence in order to be exempted from the requirement to carry out an air quality and mould test. The applicant’s licence had expired March 31, 2014. He was asked to provide the complete licence as well as a complete copy of the injunction extending the licence’s validity beyond its stated expiration date. He provided that material on June 11, 2015. He was then notified on July 15, 2015 that he was exempt from the requirement to undergo an air quality and mould test. The documents, including a transcript of the call on that day between the applicant and an ESA representative, clearly indicate that a test is not required and that an inspection can take place as soon as the inspection fee is paid. When the applicant applied for inspection August 7, 2015, the inspection took place six days later on August 13, 2015. The applicant is not able to demonstrate that evidence exists which would be reasonably available to him to prove that these actions were taken in part because of his disability or creed as opposed to compliance with ordinary rules and practices.

15As a result of my decision to dismiss these Applications on the basis of no reasonable prospect of success, it is not necessary for me to determine whether the applicant is an herbalist and whether being an herbalist is a creed. In this case, the applicant argues that his use of medical marijuana is inextricably bound up with both his system of beliefs and his disability. In other words, he self-identifies as a person with a disability whose herbalist system of beliefs causes him to rely on medical marijuana to treat his disability. Therefore, whether or not he claims protection under the ground of creed or disability, the basis for that claim is the same and has been assumed to be true. In dismissing the allegations on the basis of no reasonable prospect of success, I have found that there is no evidence which would be reasonably available to the applicant to connect the actions of the respondent with the applicant’s use of medicinal marijuana.

16Accordingly, the Applications are dismissed.