Symonik v. Hutchings, 2017 HRTO 939

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Symonik Applicant

-and-

Tracy Hutchings Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur Date: July 25, 2017 Citation: 2017 HRTO 939 Indexed As: Symonik v. Hutchings

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of disability.

2On June 14, 2017, the Human Rights Tribunal of Ontario (the “Tribunal”) issued a Notice of Intent to Dismiss (“NOID”) the application against the named respondent Warren Robertson. The applicant responded to the NOID and agreed to the removal of Warren Robertson saying that he was named in error.

3Accordingly, Warren Robertson is removed as a respondent to the Application.

4The style of cause on the NOID identifies the remaining respondent by her badge number alone. I have amended the style of cause to properly identify the respondent in the style of cause.

5Having reviewed the file, the Tribunal has decided to hold 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.

is there no reasonable prospect that the Application or part of the Application will succeed?

6The 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, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondent's adverse treatment of the applicant is based, at least in part, on the applicant’s disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

7Where 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 explain more fully the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

8Rule 19A of the Tribunal’s Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.

9Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, 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.

10There are a number of reasons why the Tribunal may decide to hold a summary hearing. In this case the Tribunal has decided to hold a summary hearing because:

It appears that the applicant may be unable to prove that there is a connection between what the respondent is alleged to have done, and the grounds of disability cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.

At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way. At the summary hearing the applicant will have an opportunity to explain how the events that she complains of are connected to the protected ground of disability. The applicant will have an opportunity to answer questions about the respondent’s telephone calls to her and explain how her disability was a factor in the way that she was treated.

11The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he/she experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he/she experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

12The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success and be dismissed. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.

13While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondent’s allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is 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.

Next Steps AND DIRECTIONS

14The 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. Although scheduled for a half-day, not all summary hearings require a half-day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

For the Summary Hearing

15The 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 available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.

16No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

17The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision..

Directions to Respondent

18A copy of the Application is delivered to the respondent with this Interim Decision. The respondent need not file a Response to the Application unless directed to do so by the Tribunal. The respondent must, however, write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing or confirming contact information for the person to whom notices and other documents should be delivered.