2020 Hrto 19

HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________
B E T W E E N:
Jemila Macanovic
2020 HRTO 19 (CanLII)

Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by Ministry of the

Attorney General, Social Justice Tribunals Ontario, and Human Rights Tribunal of
Ontario
Respondents
______________________________________________________________________
DECISION
______________________________________________________________________
Adjudicator: Kim Bernhardt
Date: January 10, 2020
File Number: 2017-29215-I
Citation: 2020 HRTO 19
Indexed as: Macanovic v. Ontario (Attorney General)

______________________________________________________________________
APPEARANCES
)
Jemila Macanovic, Applicant ) Self-represented
)
)

)
Her Majesty the Queen in Right of Ontario ) Adam Mortimer, Eric Wagner,
as represented by Ministry of the Attorney ) Counsel
General, Social Justice Tribunals Ontario, )
and Human Rights Tribunal of Ontario, )
Respondents )
)
INTRODUCTION
[1] Ms. Macanovic, the applicant, filed her Application with the Human Rights
Tribunal of Ontario (the “Tribunal” or “HRTO”) on August 8, 2017 under s. 34 of the
Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging

discrimination with respect to services because of disability and reprisal.
[2] The applicant alleges that she was perceived by Tribunal staff as being a person
suffering from a mental health disability and that she was refused service due to this
perception. At that time the applicant was involved in an ongoing hearing before the
Tribunal (involving different allegations and different respondents) and that when she
attended the Tribunal’s offices to submit material regarding that case, she was refused
service. She alleges that she was treated in a disrespectful manner by the staff and
security guard at the reception desk. The applicant filed a complaint (the “staff
complaint”) with the Social Justice Tribunals Ontario (the “SJTO”) office about this
incident, and this current Application is about the alleged mistreatment that she
experienced in trying to have the staff complaint processed.
[3] The applicant contends that staff at the HRTO and the SJTO offices refused to
process her staff complaint, imposed unnecessary restrictions upon her
communications with them, and processed her complaint in a manner that was different
from how other complaints were processed. For example, instead of investigating her
complaint against the staff, the applicant claims that she was seen as “a nuisance”, was
told to watch her communications with the Tribunal and to send letters and/or
submissions by mail. She asserts that the reason for this different treatment was
because a Vice-chair (“VC”) at the Tribunal had instructed the applicant to only
communicate with the Tribunal by mail in regard to her ongoing hearing at the time. The
applicant believes that staff at the Tribunal and the SJTO offices were aware of and
discussed the VC’s instructions, and they believed the applicant was a nuisance who
needed to be controlled, due to her mental health disability.
[4] At the commencement of this hearing on October 2, 2018 the applicant sought a
ruling that I recuse myself on the basis of institutional bias. This request was denied
with oral reasons on October 2, 2018, and in written reasons provided in Interim
Decision, 2019 HRTO 391. Despite requests from the applicant to do so, I will not be

revisiting that issue in this Decision.
[5] The hearing proceeded on October 2 and 3, 2018. At the end of the respondents’
evidence, the applicant requested that she be allowed to enter an unidentified email into
evidence based upon her cross-examination of one of the respondents’ witnesses. She
also requested that further materials be disclosed to her as they had not previously
been provided and were referenced during the testimony of one of the respondents’
witnesses.
[6] Specifically, the applicant requested that the respondents provide her with a copy
of the SJTO’s complaint log that was referenced by the Executive Assistant (“the EA”) to
the Executive Chair of SJTO. The EA’s testimony was that SJTO had its own system for
logging complaints. At the end of the hearing the Tribunal requested that the applicant
identify the email that she wished to put into evidence for the respondents and to
particularize her request for information from the log. Pending a decision by the Tribunal
with respect to these potential submissions, the hearing was adjourned.
[7] The email was identified for the respondents and the log was subsequently
disclosed to the applicant. Both parties provided written submissions regarding its
relevance to the issues in dispute, the completeness of the disclosure, and their
submissions about how the matter should have proceeded.
[8] Following the October 2 and 3, 2018 hearing dates, there were twelve
submissions or requests made by the parties between October 26 and December 13,
2018; most of which dealt with requests from the applicant for further production and to
re-open the hearing to call further witness testimony. The respondents also made a
request that the applicant be directed not to communicate with the Minister’s office.
These requests were also dealt with in Interim Decision, 2019 HRTO 391.
Subsequently, in accordance with the orders in the Interim Decision, the respondents
did provide some new disclosure that had not been previously disclosed to the
applicant. The documents should have been disclosed prior to the hearing, as per the
Tribunal’s Rules of Procedure (the “Rules”). As a result of this late disclosure, a Case

Assessment Direction (“CAD”) dated April 15, 2019, was issued to the parties directing
that the hearing would be reconvened for a further day, one witness (the “EA”) would be
recalled for further cross-examination, and the parties would be restricted to dealing
only with the newly disclosed documents and presenting final arguments.
[9] On May 16, 2019 a second CAD was issued in response to subsequent requests
from the applicant regarding the scope, cost, and her further cross-examination of the
EA. While the respondents were ordered to make the EA available for the purposes of
further cross-examination, the applicant’s request that the further cross-examination be
unrestricted in its scope was denied. A third CAD was issued on August 1, 2019,
denying the respondents’ request to speak to the EA in order to prepare her for the
further cross-examination.
[10] The hearing reconvened on August 2, 2019, during which the applicant
completed her further cross-examination of the EA, based upon the most recently
disclosed documents, and the parties provided final arguments. The applicant was
allowed to give extensive oral arguments, exceeding the time frame that had been
outlined, and these arguments have been considered in this Decision, along with the
written final argument submissions that she had provided on April 11, 2019. The
respondents’ oral and written submissions have also been fully reviewed and
considered.
[11] After the completion of the hearing on August 2, 2019, the applicant submitted
further written materials to the HRTO Registrar, stating that they were further final
argument; the respondents opposed any further submissions being entertained. The
parties were informed that the Tribunal was not accepting further submissions after the
hearing closed on August 2, 2019 and these materials have not been considered as a
part of this Decision.
[12] For the reasons that follow I find that the applicant has not established that the
respondents discriminated against her because of disability, nor was she subjected to
reprisals within the meaning of the Code.
BACKGROUND

Summary of Events and Applicant’s Allegations
[13] The following summary of events was confirmed through the documentary and
witness evidence that was provided during this hearing. The three witnesses were the
applicant, the Executive Assistant (“EA”) to the Director of Operations, SJTO (whose
duties in that role included acting as the SJTO Complaints Coordinator), and EA who
was the EA to the Executive Chair at the relevant time.
[14] The applicant testified that on November 24, 2016 she attended the HRTO
hearing centre around 5 p.m. to provide tables to help summarize documents received
in an ongoing matter that she had before the Tribunal, which were requested by and for
the purpose of assisting the VC of that matter. The applicant claims that the staff were
rude and refused to accept the documents from her. She was told that they closed at 5
p.m., and it was two minutes after five by the time she was provided with and completed
the confirmation of delivery form; even though the security guard’s complaining that they
were about to close caused some of the delay. Because the staff at the desk (including
the security guard) refused to accept her documents, she was forced to leave her
confidential documents unprotected on the reception desk.
[15] The applicant sent an email to the SJTO Complaints Coordinator, the Attorney
General (the “AG” or “MAG”), and Ontario Premier Kathleen Wynn on November 24,
2016 at 5:45 p.m. complaining about this incident (the “staff complaint”) and stating that
she thought that she was treated differently from others because she was white. She
resent the complaint at 5:48 p.m. with some additional information, to the same parties
(but using the general email for the AG’s office). The complaint email was rewritten and
sent again at 10 p.m. to the same parties but also added E. Hoskins, MPP as a
recipient.
[16] On November 25, 2016 she received a response from the SJTO Complaints
Coordinator stating that they would review her complaint and send a response within 15

days.
[17] The duties of the EA to the Director of Operations for SJTO included acting as
the Complaints Coordinator. During her testimony she stated that her role was to check
the SJTO email and voice mail for inquiries and complaints and to forward them to the
appropriate Tribunal within SJTO. If the inquiry or request was unclear or did not clearly
identify which Tribunal was involved, she would seek direction from others, often from
those in her office or the executive assistant of the Tribunal in question.
[18] The EA to the Director of Operations testified that this was the process she
followed when she received the applicant’s November 24, 2016 emails. She sent an
email to the EA of the HRTO on November 25, 2016 stating that she’d learned from one
of her office colleagues that the HRTO had dealt with the applicant on numerous
occasions and so the EA to the Director of Operations asked whether to send a generic
email to the applicant or if the HRTO should send the response.
[19] On December 2, 2016 the EA to the Director of Operations received a response

from the EA of the HRTO stating that she had spoken to the former HRTO Registrar,
that the applicant has a “long history of complaints with us, involving both staff and vice
chairs”, that the HRTO had advised the applicant that they would no longer be
responding to her complaints, and that the HRTO had issued a direction to the applicant
that she could no longer email them, although there was no such prohibition in that
direction stating that she could not email or call the SJTO. It was suggested that given
these HRTO directions perhaps a response from the SJTO was warranted. In a follow
up email later that day, the EA to the HRTO added that as the applicant had previously
complained about her, that she should not be receiving any complaints related to her,
nor should she be involved in any responses to the applicant.
[20] On December 6, 2016 the EA to the Director of Operations sought further advice
from the then Executive Assistant in the SJTO office (who was not subsequently
involved in this matter) about the response to the applicant and received advice that she
should send a general response to the applicant from the SJTO, referencing the

communication protocol from the HRTO.
[21] The EA to the Director of Operations responded to the applicant’s November 24,
2016 email on December 29, 2016. In that response, the EA to the Director of
Operations stated that, in accordance with the HRTO directives, all communication
regarding her open files before the HRTO must be in writing and by mail. The EA to the
Director of Operations also referred the applicant to the SJTO Complaints Policy (the
“Policy”) which outlined that if someone had an ongoing case their complaint could be
postponed until the final decision is issued or the member’s involvement in the case has
ended.
[22] On February 13, 2017 the applicant sent two emails to the EA to the Director of
Operations asking what was being done about her complaints to the HRTO regarding
the EA to the HRTO, stating that she had never received a response, that her ongoing
case was done, and that they had enough time to have responded.
[23] The applicant sent another email to the EA to the Director of Operations (copying
the AG) on February 22, 2017, asking how the EA to the Director of Operations was
aware of how she was to communicate with the HRTO, and advising the EA to the
Director of Operations that the communication protocol referred only to one case. She
stated that the EA to the Director of Operation’s comments were “unprofessional”, that
the EA to the Director of Operations was “incompetent” and that the applicant would be
complaining to the Minister. The applicant also stated that her staff complaint was never
investigated and should have been as it had nothing to do with the adjudication of her
ongoing case. The applicant also sent an email to the AG asking whether someone in
the HRTO office thought the conditions were a form of punishment.
[24] The applicant also wrote to the AG and Premier Wynne on February 23, 2017
stating that she had called the EA to the Director of Operations and told her that her
response to the staff complaint was unacceptable, that she felt she had been
discriminated against because of racism, and that assumptions were being made on the

basis that the applicant was mentally ill, considered a nuisance, and Muslim. The
applicant claimed that during their telephone conversation the EA to the Director of
Operations interrupted her, said that she was not accepting the complaint, raised her
voice, did not allow the applicant to explain herself, talked over the applicant, would not
listen, and hung up the telephone.
[25] The EA to the Director of Operations testified that she did not recall the February
2017 telephone conversation in detail, but she stated that she did not work with the
HRTO staff or discuss the applicant with them, did not hang up the phone, would have
listened to the applicant and probably referred to the policy. She did not recall the
applicant referring to her mental illness, and sent an email response to the EA stating
that the applicant was now complaining about her and that although the EA to the
Director of Operations was uncertain about the status of the applicant’s ongoing HRTO
case, the HRTO Registrar, had said that there was no need to respond further.
[26] The EA to the Director of Operations had forwarded the applicant’s email to the
HRTO Registrar on February 22, 2017, stating that the applicant had sent the same
email four times and was “calling non-stop”. The EA to the Director of Operations asked
the HRTO Registrar if there should be a response as the Registrar had been dealing
with the applicant’s previous complaint that had been escalated. On February 23, 2017
the HRTO Registrar responded to the EA to the Director of Operations stating that there
was “no need to respond further”.
[27] On February 23, 2017 the applicant sent further complaints regarding issues
involved in her ongoing HRTO case. These complaints were sent to the SJTO
complaints and the MAG emails. Two emails were sent complaining about the
Associate Chair’s refusal to intervene in the process of the ongoing HRTO application
and its process, and the Associate Chair’s subsequent refusal to read the applicant’s
submissions, investigate her concerns, or intervene until the matter was concluded. She
never received a response to her complaints. The applicant and the EA also had a
telephone conversation sometime around the February 23, 2017 emails; the EA recalls
that it was a “challenging” conversation during which the applicant was upset and raised

her voice, but the EA stated that at no time did the applicant mention that she was
Muslim or had a mental illness, as claimed in the applicant’s February 23, 2017 email.
[28] The applicant did not specifically mention having a conversation with the EA in
her correspondence or testimony (nor was she asked about it during cross-
examination). However, the applicant acknowledged calling others and did comment in
her February 27, 2017 complaint (discussed below) that during her conversation with
the Executive Lead, she advised the applicant that she was aware that the applicant
had called many people and she became upset with the applicant. The applicant goes
on to explain in her February 27, 2017 email that the reason she called “everyone” was
because no one wanted to help her.
[29] The applicant also sent a detailed complaint on February 27, 2017, along with
two follow-up emails, about all of her concerns with HRTO and SJTO staff members
(the “SJTO complaint”) to the SJTO complaints email, addressed to the Executive
Chair, SJTO. Much of this complaint dealt with the EA to the HRTO and the way that
she performed her role as Case Processing Clerk for the ongoing HRTO case. She also
raised her concerns about the former HRTO Registrar’s dismissal of the concerns that
she raised with him regarding the EA to the HRTO conduct; and the conduct of an
HRTO scheduler in the matter. She also referenced her concerns regarding the way her
staff complaint, the subject of this hearing, was handled by the EA to the Director of
Operations and by the Executive Lead. The EA to the Director of Operations forwarded
these emails to the EA on February 28, 2017 and sent a response to the applicant that
her complaint had been forwarded to the Executive Chair for a response.
[30] On March 3, 2017 the EA sent a response to the applicant’s February 23 and 27,
2017 complaints, as well as to her February 2017 telephone conversation with the
Executive Lead. In the email, the EA states that she has “followed-up with my
colleagues [at the HRTO] to investigate your concerns”. She goes on to tell the
applicant that although the applicant’s ongoing HRTO case had concluded the decision
was still pending, so that any complaints about staff or the adjudicator would not be
addressed until the completion of the Application through the final decision, including

reconsideration. If at that time the applicant still had concerns, she could submit a
complaint using one letter in accordance with the Policy. The EA’s correspondence also
stated that “any calls received by staff other than the complaints coordinator will not be
accepted and emails to staff will not be addressed”.
[31] The applicant forwarded the EA response to the SJTO Complaints and the MAG
(under two emails, the second one with an explanatory comment) on March 3, 2017.
The first email included the comment that “clearly these individuals do not understand
the submissions…”.
[32] The applicant sent a subsequent email to the Complaints Coordinator on March
30, 2017 requesting information regarding the security guard; the information was
provided in an email on April 10, 2017.
[33] On August 8, 2017 the applicant filed the current Application. The final Decision
in the ongoing case that gave rise to this Application was given sometime later in
August 2017, and the applicant drafted a Request for Reconsideration in September
2017, which did not result in any change to the original Decision. In October 2017 the
applicant sent emails to the Deputy Attorney General regarding the HRTO’s failure to
reconsider the Decision in her case, but also wanted him to know about the HRTO
staffs’ conduct.
[34] The applicant’s complaints (of November 2016 and February 2017) about the
HRTO and SJTO staff were never investigated. The applicant did not refile her
complaints once the ongoing case was completed after the reconsideration process in
October 2017, as had been outlined in the EA’s March 3, 2017 letter.
APPLICANT’S ARGUMENTS
[35] The applicant asserts that her complaints against the staff were not investigated;
that she was ignored, dismissed and not treated like any other member of the public;
and that her complaints were arbitrarily dismissed because she was seen as a nuisance
because they saw her complaining as a mental health issue. She also asserts that the

adverse communication condition, that she mail (instead of email) her complaints, was
imposed as a reprisal for her complaining about her rights under the Code.
[36] Instead of listening to her concerns, the applicant argues that staff at the HRTO
and SJTO “gossiped” about her and profiled her with a negative stigma attached to her
mental health by using and unjustly applying the communication protocol that had been
imposed by the VC in her ongoing case. The information that the staff shared was also
inaccurate as it was not made clear in their communications that the VC’s conditions
applied only to that case, applied to both parties in that matter (not just the applicant),
and did not apply to any other communications with HRTO or SJTO outside of that
case.
[37] The applicant stated that she was not listened to when she explained to the
HRTO and SJTO staff that there was no reason not to investigate the applicant’s
November 2016 staff complaint as it only involved administrative staff and matters, and
had nothing to do with the ongoing matter that the VC was adjudicating. In this email,
she included her ongoing concerns with the HRTO, and the mishandling of both in her
February 23, 2017 complaint to the SJTO Complaints email.
[38] The applicant submits that the following evidence supports her conclusions.
[39] The applicant described the December 2, 2016 email response from the EA to
the HRTO to the EA to the Director of Operations request for information as claiming
that the applicant had a propensity to complain relentlessly, and that the EA to the
HRTO was quick to point out that email restrictions were placed on the applicant’s
communications. The applicant asserts that the EA to the HRTO read into the VC’s
communications restrictions from the ongoing matter as validation for the EA to the
HRTO’s own discriminatory bias against the applicant. These comments were described
by the applicant as: being unwarranted and arbitrary; concerned only with delegitimizing
the applicant’s concerns, rather than dealing with the applicant’s concerns; and with
influencing the SJTO staff to believe that they needed to manage the applicant’s
communications.

[40] According to the applicant, the December 29, 2016 response from the SJTO
Complaints Coordinator demonstrated to the applicant that by referencing the HRTO’s
communication restrictions, the SJTO was taking part in the unfair profiling of the
applicant. The EA to the Director of Operations draft response to the November 24,
2016 staff complaint was only going to give a generic response until the EA to the
HRTO and others in the SJTO office informed her about the HRTO communications
restrictions, and then they were added to the EA to the Director of Operations
December 29, 2016 response.
[41] The applicant believes that there was no reason for her staff complaint not to be
dealt with as it was an administrative matter that had nothing to do with adjudication of
the ongoing case. However, because she was tainted by the HRTO to the SJTO as a
problematic person with a mental illness that had to be controlled, the SJTO did not
process her complaint.
[42] The fact that the applicant’s subsequent emails were ignored, and no response
was given was a further indication to her that the SJTO had decided to support the EA
to the HRTO and the HRTO in their management of the applicant. In her emails the
applicant told the SJTO that she was being profiled as the restrictions must have come
from the HRTO. By ignoring the applicant and her complaints, the respondents were
undermining her sense of dignity.
[43] The SJTO’s response to the applicant’s February 2017 complaints added to the
applicant’s belief that the SJTO was relying upon the VC’s communications directive to
manage what they “unreasonably and prejudicially saw as a difficult mentally ill person
who had a propensity to complain”. The March 3, 2017 correspondence from the EA, on
behalf of the SJTO, stated that they would not be investigating the applicant’s
complaints until a final decision, including any reconsideration, was completed. The
applicant was instructed that if she still had concerns at that time, she was to resubmit
them in one letter using the Complaints Procedure. In the meantime, any calls or emails
to staff other than the complaints coordinator would not be responded to. The applicant

perceives that the imposition of these restrictions upon her communications were made
as a punishment because she had complained again.
[44] According to the applicant, the requirement that she submit any future complaints
by way of sending a single letter, instead of email, was done to hinder the applicant’s
ability to complain. The need to resend her complaints, which had already been
submitted in writing, not only was done to discourage the applicant from filing again, but
inferred that the EA was closing the lines of communication by the restrictions imposed
in her March 3, 2017 letter – and the applicant thought that this closing of the line of
communication was sufficient justification on its own to find that the Code was
breached.
[45] The applicant argues that correspondence in early March between the EA and
staff at the HRTO (to and from the EA to the HRTO in particular) was evidence that the
SJTO was in support of the HRTO’s profiling of the applicant. In this correspondence
the EA asked the EA to the HRTO to clarify the restrictions imposed by the VC to review
because she wanted to “get on the same page”. This correspondence was a part of the
late disclosure and so the applicant questioned the EA about it during the further cross-
examination.
[46] The applicant also argued that the HRTO Registrar showed no interest in dealing
with her concerns as correspondence showed that he replied “no comment” in response
to the applicant’s concerns, which the applicant describes as his exhibiting the “most
cavalier attitude towards those complaints”. She suggests that this was a signal to the
EA that without the HRTO Registrar’s assistance, nothing could be done with the
complaints.
[47] In sum, the applicant argues that having filed serious and legitimate complaints in
accordance with the complaint system that was available, the SJTO should have
investigated her concerns and responded. She states that she did not expect that
instead they would use a “prejudicial CAD (the case direction from the VC) that
describes me as a problematic mentally ill person in order to justify profiling me”.

Additionally, she argues, that there was no reason for the SJTO to have imposed email
restrictions or tolerate the HRTO’s refusal to respond to her complaints. Overall, she
calls their actions a breach of the Code in the area of services.
[48] The applicant claims that the respondents’ actions had a profound impact on her.
She was treated like a “pariah”, was hurt, felt humiliated and her sense of dignity was
undermined. The HRTO’s actions delegitimized her concerns and limited her ability to
challenge the staff’s perceptions of her, prejudicing her Application and giving her no
recourse to complain.
[49] The applicant refutes a number of the respondents’ arguments, starting with her
assertion that the deferral of her complaint was arbitrary and unnecessary. According to
the applicant, the EA to the HRTO was in a non-adjudicative role and should not have
any influence over decision-making. So, if the EA to the HRTO, as a processing clerk,
was acting improperly, this could have been addressed. In fact, the applicant argues
that it should have been addressed in order to prevent damage to her ongoing case,
given the applicant’s allegation of the EA to the HRTO not processing requests,
including the applicant’s submission for reconsideration. According to the applicant the
EA testified that there was no concern that could not have been addressed immediately
or that would have a prejudicial effect on the VC’s decision-making function.
[50] The applicant argues that the EA’s decision to defer was nonsensical, and that
the EA then sought assistance from the Executive Lead and the HRTO Registrar,
although she knew that there would be no forthcoming response given the HRTO
Registrar’s previous “cavalier” manner of responding by saying “no comment” to the
applicant’s concerns. The applicant maintains that the deferral was a means to
postpone having to deal with the complaint, and that the decision to defer was made
only after the EA notified the HRTO Registrar. The fact that the EA followed the HRTO’s
communication restrictions in her March 3, 2017 letter, cutting off the applicant’s ability
to file complaints and have them processed, demonstrated to the applicant that the
SJTO did not provide an independent oversight to the HRTO during the complaint

process. In this, the SJTO failed in their duty to investigate complaints of discrimination.
[51] According to the applicant, there was no intent to investigate her concerns or to
ensure that an investigation took place. While there was no need for the EA to have the
applicant resend her already documented complaint to initiate the investigation once the
ongoing case was finally determined, the EA did not initiate the investigation at that
stage. Instead the EA relied upon her March 3, 2017 directive that the applicant re-
submit her complaint, if she wanted to, after the adjudication had concluded all its
stages. The applicant argued that the EA should not have assumed that she had the
authority to dismiss the complaints in this manner (even if she did have the right to defer
them).
[52] The applicant argues that the EA must have misinformed or failed to inform the
Executive Chair about the applicant’s complaints as it was not credible that the
Executive Chair would have ignored the complaints or let them go without investigation.
It is the applicant’s contention that the EA was not the real decision maker or
investigator, but that those who would have had the qualifications and responsibility to
make such decisions would have been the Executive Chair (who must have been
uninformed) or the HRTO Registrar (who refused to investigate). According to the
applicant, it was the Executive Chair’s practice to forward administrative staff complaints
to the Registrar for investigation, and for the Executive Chair to sign the responses to
the complaint letters himself. However, because the EA and the HRTO Registrar were
so accepting of the profiling of the applicant they thought that she was not worthy of
being taken seriously.
[53] The applicant asserts that she was prevented from fully exploring this line of
reasoning by my upholding the respondents’ objection to her cross-examination of the
EA about her qualifications. According to the applicant, had she been able to establish
that the EA was not qualified to either investigate or determine the complaints, it was
unlikely that the EA was the real decision maker in processing the applicant’s
complaints, contrary to what the EA said during her testimony. The result of which,
would be to negate the EA’s credibility, according to the applicant.

[54] The applicant also challenges the EA’s testimony that she did not know about the
VC’s decision. Not only did the EA discuss the restrictions with the EA to the HRTO, but
the EA to the HRTO referred to sending the EA a copy of the decision, as was
discussed in the email correspondence between them. The EA’s email of March 1, 2017
specifically referred to wanting to know what the HRTO restrictions were so that they
could all “get on the same page”.
[55] The applicant argues that I should draw an adverse inference from the fact that
the respondents did not call the EA to the HRTO and the HRTO Registrar as witnesses.
It is her contention that the case law requires that while the burden of proof is on the
applicant, it does not require much evidence in order to shift the burden to the
respondent to explain why their actions were not discriminatory. As the respondents’
case rested upon the EA’s testimony, the EA did not provide a complete answer to the
prima facie case, according to the applicant, as the EA did not answer why there was
not an investigation, or if they were managing the applicant by not responding to her.
The applicant contends that others hold the key evidence or explanations to these
important aspects of her case. Because they were not called as witnesses, the applicant
submits that I should infer that they would have evidence that negatively affected the
respondents’ case.
[56] As mentioned, the applicant also contends that she was denied procedural
fairness by the Tribunal during the hearing. She maintained that she had the right to a
fulsome cross-examination of the witnesses, in particular the EA, and that some of the
rulings and restrictions imposed denied her the opportunity to fully explore her theory of
the case. During the applicant’s first cross-examination of the EA, she attempted to
question the EA about what qualifications the EA had to perform the role of the
investigator. The applicant states that it was her intent to challenge the EA’s credibility
by demonstrating that it could not have been the EA who had the decision-making
authority over the applicant’s complaints as the EA did not have the ability to act
independently without the approval of those with the authority. However, the
respondents’ objection was upheld on the basis that the line of questioning was not

relevant to the issues in dispute.
[57] The applicant also contends that her case was negatively impacted by the CAD
that limited the EA’s further cross-examination to only the new matters that arose from
the respondents’ late disclosure of some relevant documents, including the SJTO
complaint log. She argues that an unbroken cross-examination would demonstrate her
theory that the SJTO staff (such as the EA ) knew about the VC’s decision referring to
the applicant’s mental health, were improperly influenced by this decision, and that they
acted upon their prejudices of the applicant as a person with a perceived mental
disability. The fact that the log indicated that the Executive Chair usually signed the
responses to the complaint letters was evidence that the EA was not the decision maker
and that the applicant’s complaints were treated differently from others. By giving
testimony denying these premises, the EA’s evidence could not be taken as being
credible. However, the applicant asserts that she was not allowed to fully explore these
threads as her cross-examination was interrupted by the respondents’ failure to provide
her with all of the evidence initially, and because I ruled that she could not have an
unrestricted further cross-examination of the EA.
[58] As a remedy, the applicant requested that the EA, the Executive Lead, and the
HRTO Registrar be terminated from executive positions at the SJTO. Although she did
not mention it in either her written or oral closing submissions, in her Application she did
request $10,000.00 for the breach of her Code rights and for her hurt feelings and
humiliation.
RESPONDENTS’ ARGUMENTS
[59] The respondents’ final argument was provided orally without written submissions.
This was considered along with their written response to the Application, their exhibits, a
Memorandum of Law, and accompanying case law.
[60] The respondents maintain that the applicant had not made out a prima facie case

of discrimination because the evidence did not show that: there was differential
treatment; those who made the decision about her complaint had knowledge of a
ground under the Code being involved; nor that there was a nexus between any Code
ground and the events in her case.
[61] The respondents summarize the applicant’s case as having made three
allegations: first that the SJTO staff ignored or dismissed her complaints because they
perceived her to suffer from a mental disability; second that the SJTO staff enforced
conditions that required her to communicate with the HRTO by mail because they
perceived her to suffer from a mental disability; and third that the SJTO staff enforced
communications conditions on the applicant as a reprisal for her filing complaints. The
respondents deny that they discriminated against or retaliated against the applicant as
alleged.
[62] According to the respondents, the applicant’s complaints were addressed in

accordance with standard SJTO policy. The SJTO Complaints Policy and Process
provides that when a complainant has an ongoing proceeding before SJTO tribunals,
action on the complaint may be postponed to protect the fairness and impartiality of the
ongoing proceeding.
[63] The respondents also outlined that the HRTO has a Practice Direction that
permits the Tribunal to vary its approach to communicating with a person when
appropriate, such as issuing orders prohibiting a person from using email
communication where a person fails to comply with HRTO rules, and to reject
communications that are unduly lengthy, repetitive, or disrespectful of other participants
or the Tribunal.
[64] The respondents maintain that the applicant’s three November 24, 2016 email
complaints to the SJTO Complaints Coordinator were taken seriously and immediately
addressed by the Coordinator who responded to the applicant the next day that the
complaints would be reviewed and started to seek information about the situation from

those in her office and at the HRTO.
[65] The respondents submit that the applicant’s ability to communicate with the
HRTO had been limited by the VC’s February 20, 2015 Case Assessment Direction,
which required that “all communication from the parties and the Tribunal be in writing,
sent by regular mail…”, and that she remained subject to these conditions at the time of
her staff complaints.
[66] According to the respondents, the emails and telephone calls that the applicant
made to SJTO employees during the week following February 13, 2017 about her
dissatisfaction with the case management of her ongoing HRTO application and
complaints, were repetitive. The EA did respond to these complaints on March 3, 2017
by requesting that all future communication from the applicant be sent to the Complaints
Coordinator; again informing the applicant that her complaints would not be addressed
until her ongoing HRTO application was resolved; and that if she wished to pursue her
complaints at that time she was to do so via a single letter to the Complaints
Coordinator.
[67] The respondents argue that the applicant has not presented any evidence to
establish a connection between her perceived disability and how the SJTO employees
addressed her complaints. Contrary to her subjective belief that her complaints were not
being addressed because she was stereotyped as having a mental disability, her
complaints were dealt with in accordance with the SJTO Complaints Procedure, with no
different treatment than others with complaints experienced. According to the
respondents, case law has found that the applicant’s subjective belief is insufficient to
establish discrimination under the Code,
[68] The respondents claim that there are rational and credible explanations for the
actions of the SJTO staff in their interactions with the applicant. First, the applicant’s
complaints were postponed because they related to her ongoing HRTO case, in
accordance with the SJTO Complaints Policy. Secondly, the communications conditions
were imposed by the VC in the applicant’s ongoing case due to the applicant’s

inappropriate conduct (including sending unduly lengthy and repetitive correspondence
and being disrespectful to other participants and the Tribunal).
[69] It is the respondents’ position that similar concerns arose during the processing
of the applicant’s staff complaints which necessitated that they impose a similar
communication protocol. This was not due to any perception that the applicant was
mentally ill, but because of the ongoing HRTO matter, and because the applicant’s
communications were iterative, sometimes changing, involving a number of the SJTO
staff, and the respondents wanted to ensure that they had a consistent approach and
person in order to respond properly to the applicant.
[70] The respondents argue that the SJTO staff did not know of or connect the
applicant’s behaviour to a disability (despite her belief otherwise). The applicant did not
tell them that her behaviour was tied to her having a disability. Instead, they state that
they responded to the applicant’s insistent, repetitive, and difficult communication and
conduct without having any link to a Code ground as the reason for her behaviour.
[71] As examples of the applicant’s conduct, the respondents assert that after
sending two emails to the Complaints Coordinator (“SDF”) on February 13, 2017 asking
about her complaints to the HRTO regarding the EA to the HRTO, the applicant
continued to call and email staff at the SJTO. She spoke to the Executive Lead
sometime in February 2017 and was told that she would get a response by March 6,
2017. On February 22, 2017 the respondents claim that the emails sent by the applicant
to the SJTO were “virtually identical” in that the applicant was claiming that the SJTO
Complaints Coordinator knew about and repeated the HRTO communications
restrictions, which the applicant referred to as “throwing it in my face”. Then the next
day (February 23, 2017) the applicant sent emails and “continuously called” staff at the
SJTO, and she spoke to the EA and the EA to the Director of Operations. Contrary to
the applicant’s description of her call with the EA to the Director of Operations (she
described the EA to the Director of Operations as yelling at her and hanging up the
telephone), the EA to the Director of Operations testified that while she did not

specifically recall her conversation with the applicant, she did not say anything about
working with the HRTO staff or discussing the applicant with them and that she would
not have hung up the telephone but would listen and perhaps refer to the Policy. The
EA to the Director of Operations had no recollection of the applicant saying that she had
a mental illness as this first was brought to her attention by one of the applicant’s
February 23, 2017 emails in which the applicant said that people were talking about her
being mentally ill, but not that the applicant was mentally ill.
[72] The respondents point out that the applicant sent a comprehensive 15-page
email (three times within a short time period on February 27, 2017) about her
experiences with the HRTO and the SJTO to the SJTO complaints email, addressed to
the Executive Chair. The next day the EA to the Director of Operations forwarded this
complaint, along with the two follow up emails, to the EA and sent a response to the
applicant informing her that her letter had been forwarded to the Executive Chair for
review and response.
[73] The respondents state that the emails document that the EA followed up on the
complaints on March 1, 2017 by asking the EA to the HRTO and the HRTO Registrar
for input on her draft response to the applicant, confirmation about what cases and
complaints were ongoing, and for confirmation about the communication protocols they
had in place. After a few drafts that are reviewed by the Executive Lead, the HRTO
Registrar and the EA to the HRTO, the March 3, 2017 letter was sent to the applicant
with a protocol for the applicant’s communications with the SJTO. According to the
respondents, these consultations show that the EA was seeking information, not
approval, and that she sent a copy to the Executive Chair.
[74] The respondents’ position is that as the current Application was filed on August
8, 2017 and the Decision in the applicant’s ongoing case at the HRTO was issued on
August 20, 2017, there was no time at which the applicant did not have an ongoing
matter, thus delaying any investigation into her complaint. Also, the applicant never
provided an updated complaint in writing, as was outlined in the EA’s letter of March 3,
2017. For these reasons, and not because of any discriminatory reason, there was no
investigation into the applicant’s complaints.

[75] The respondents provided and referred to a number of cases in support of their
position that the applicant had not established a prima facie case, despite having the
onus to prove that she had been treated in a discriminatory manner.
[76] The respondents cite cases that in turn cite the Supreme Court of Canada’s
(SCC) decision in Ontario Human Rights Commission and O’Malley v Simpsons-Sears,
[1985] 2 S.C.R.536 (“O’Malley”), for the definition of a prima facie case of discrimination;
it stated:
The complainant in proceedings before human rights tribunals must show

a prima facie case of discrimination. A prima facie case in this context is
one which covers the allegations made and which, if they are believed, is
complete and sufficient to justify a verdict in the complainant's favour in
the absence of an answer from the respondent-employer.
[77] According to the respondents, this requires that the applicant establish on a
balance of probabilities that she experienced adverse treatment based on a prohibited
ground, as at least one of the factors for the adverse treatment.
[78] The respondents argue that the belief of the applicant that she was discriminated
against is not adequate to prove discriminatory treatment without supporting evidence,
as outlined in the case law. In Hui v EPM Global Services, 2011 HRTO 2121 (“Hui”), at
paras. 14 - 15, the Tribunal states that “the applicant’s belief that the respondent
mistreated him on the basis of disability, age, appearance, etc. is not evidence…it is not
open to the Tribunal to make a finding of discrimination or harassment based only on
the applicant’s feelings or beliefs.” This statement is relied on by the Tribunal in
Aboagye v Region of Peel – Human Services Housing Operations and Management
Services Peel Living, 2016 HRTO 1442 (“Aboagye”) at para. 16. In Barber v Markham
Stouffville Hospital, 2015 HRTO 1257 (“Barber”) at para. 7, the Tribunal adds to this
evidentiary caution by stating “accepting the facts alleged by the applicant does not
include accepting the applicant’s assumptions about why she was treated adversely.”

[79] According to the respondents, there was no evidence in this case that supported
the applicant’s perceptions and beliefs; her perception was supported by her
suppositions instead of concrete evidence. As acknowledged by the applicant, none of
the evidence (conversations, letters and/or emails) mentions that the applicant had a
mental disability, other than when she alleged that the SJTO and HRTO staff were
treating her differently because of the reference to her mental health in the VC’s
February 20, 2015 CAD. Despite the applicant’s belief to the contrary, both the EA to
the Director of Operations and the EA denied having seen the VC’s February 20, 2015
CAD during the course of these events, up until they were being prepared to testify at
this hearing. The respondents state that their discussions regarding the applicant’s
complaints against the HRTO and SJTO staff focussed upon the communications
restrictions that were imposed by the VC and did not include concerns about the
applicant’s mental health.
[80] Even if the February 20, 2015 CAD’s comments about the applicant’s mental
health had been known to the EA and/or SDF, the respondents’ interpretation of the
February 20, 2015 CAD is that the applicant’s conduct in that case was not disability
related, but due to some other factor, as per para. 18 of the February 20, 2015 CAD:
The applicant identifies as someone with an anxiety disorder. She

has provided no information to the Tribunal that indicates her
conduct during the course of this proceeding is disability-related. As
such, I can only conclude that there is no disability-related reason
for the applicant’s inappropriate conduct.
[81] As a result, the respondents argue that there was no substantial link between the
actions that the applicant complained about in her Application (the deferral of her staff
complaints and the communications protocols), and any Code ground (such as either a
perceived or actual disability).
[82] In addition to there not being evidence of a link between the staff actions and the
applicant’s stated mental disability, the respondents argue that there was direct
evidence of other reasons for these actions. In accordance with the Policy, any action
into the staff complaints was deferred pending the completion of the ongoing

adjudication, as was communicated to the applicant in the responses to her complaints.
The respondents claim that the reason for doing so (to maintain the integrity of the
adjudication process) was made clear to the applicant, even if she disagreed with the
rationale for deferral.
[83] Similarly, the respondents state that there was another rationale for the
communications protocol that was imposed on the applicant, other than her belief that it
was because the staff wanted to “control” her because they perceived her as having a
mental disability. They argue that the evidence points to another rationale - that a
communications protocol was necessary given the repetitive and lengthy
communications to a number of people from the applicant. Contrary to the applicant’s
allegation that the SJTO’s directives unreasonably cut off her ability to communicate at
all, the respondents point out that the applicant was asked to send all communications
to one person, the Complaints Coordinator. Furthermore, they point out that this
protocol was utilized when the applicant received a response (on April 10, 2017) to her
March 30, 2017 inquiry about the security guard’s name, and the name of the security
guard’s company.
[84] The respondents conclude that not only did the applicant fail to establish a prima
facie case based on the evidence, that even if she had, there were justifiable, non-
discriminatory reasons for the deferral of the staff complaints and for the SJTO’s
communications protocols.
[85] As for the applicant’s allegation that the communications protocols were a
reprisal for her submitting complaints that alleged discrimination, the respondents argue
that the facts do not fit the necessary requirements for a successful allegation of reprisal
action, as outlined in Noble v York University, 2010 HRTO 878 (“Noble”), at para. 33.
Even if the requirement, that she is to submit a single letter if she wished her complaint
to be considered once the ongoing adjudication was completed, was considered to be
an “action taken against” the applicant, and if the action was related to her attempt to
enforce her rights under the Code, there was no indication of any intention on the part of
any of the staff to retaliate against the applicant. The respondents state that this third

element, the intention to retaliate, must be established in order to make out a claim of
reprisal, and that there is no such evidence in this case.
[86] In addition to their legal arguments about how the evidence should be viewed,
the respondents also commented on other evidentiary and procedural matters that
arose. They suggest that the applicant’s evidence should be given less weight when it
contradicted that of the respondents’ witnesses. They claim that this is because she
was less specific about key events and the order in which things happened, and yet was
argumentative even when the documents were put before her, until she read the
documents. Such inconsistencies should lead the Tribunal to find that the applicant’s
evidence, when it contradicted other evidence, was less reliable and be given less
weight.
[87] The respondents deny that there is any reason for the Tribunal to take an
adverse inference from the fact that they did not call certain staff members to testify. It
was the applicant’s theory that the “real” decision maker for her staff complaints was
someone other than the EA, and that they must have had something to hide by not
testifying. However, the respondents point out that this is not their theory of the case,
which is that the EA was the decision maker in this complaint process, and they had no
need to call other witnesses.
[88] As for the applicant’s concerns regarding procedural fairness, the respondents’
position is that the issues regarding the adjudicator’s ability to adjudicate and the
decisions regarding further evidence being sought were both dealt with in previous
rulings and need not be revisited. They dispute that the applicant’s case was prejudiced
in any way by the late disclosure of some documents as the applicant was provided with
the documents and was allowed to address them and further cross-examine a witness
(the EA) about those documents. They note that this was without there being any further
direct examination of the EA about the documents. The respondents state that contrary
to the applicant’s suggestion that the respondents lied about the documents, given the
size of the organizations, they missed the documents until specifically looking for HRTO
emails, and there is no evidence to suggest otherwise. There was no procedural

unfairness to the applicant that resulted from the process as she was allowed to
address all of the evidence.
[89] As for the applicant’s assertion that the EA’s credibility should be questioned, the
respondents argue that the documents presented are consistent with the EA’s
testimony that, with consultation, she made the decision regarding the process for the
applicant’s complaints, and that the applicant was treated the same as any other person
who filed a complaint about the HRTO and/or SJTO in similar circumstances.
[90] The respondents also argued that the MAG should not have been listed as a
respondent as there were no events that they were involved with, despite the applicant’s
claim that the Attorney General should be held “vicariously liable” because they knew
that things were going on and were told about the problems with her ongoing matter,
and ignored her.
[91] The respondents submit that this application should be dismissed.
ANALYSIS AND DECISION
[92] The issue is whether the applicant was reprised upon and/or discriminated
against in the provision of services on the basis of disability due to the way in which she
was treated during the processing of her staff complaints.
[93] To decide this issue, I am guided by the well-established principles for

determining if a prima facie case of discrimination has been established: Did the
applicant show that they were differentiated in an adverse manner on the basis of a
prohibited ground as one of the factors that contributed to the adverse treatment, as
outlined by the S.C.C. in O’Malley and subsequently followed in the case law. If a prima
facie case was established by the applicant, have the respondents provided sufficient
evidence of non-discriminatory reasons for their actions to avoid an adverse finding, as
outlined in Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”). In the Hui and
Aboagye, cited above, it is not open to the Tribunal to make a finding of discrimination
or harassment based only on the applicant’s feelings or beliefs.

[94] There were few disputes between the parties about the events, however there
were a couple of issues that potentially raise issues of credibility. During her February
2017 telephone conversation with the EA to the Director of Operations, the applicant
alleges that the EA to the Director of Operations interrupted her, raised her voice, did
not allow the applicant to explain herself, and hung up on the applicant. The EA to the
Director of Operations testified that although she did not recall the conversation, there
was no discussion regarding the applicant having a disability, nor would she have
yelled, hung up the telephone, or otherwise have been rude to the applicant. This
incident was not specifically raised in the Application and the EA to the Director of
Operations was not crossed examined about her conduct during the call by the
applicant. While the applicant perceived that she was treated rudely, she also
acknowledged that she was upset and calling many people during this period. Given the
strength of the applicant’s belief that she was being mistreated and lack of attention
given to this alleged conduct by the EA to the Director of Operations, I find it more likely
that the applicant overstated the EA’s to the Director of Operations conduct during the
telephone conversation.
[95] The other disputed issue that raised credibility issues was the applicant’s
assertions that the SJTO staff members were lying; first about whether they were aware
of her having a mental disability based upon information from staff at the HRTO, and
secondly whether the EA was the true decision maker in regard to the applicant’s
complaints. As is discussed below, there was no evidence to support these claims,
there is nothing but supposition on the part of the applicant that would lead to a finding
that these witnesses lied.
[96] The applicant’s theory of the case begins with her belief that comments in the
VC’s February 20, 2015 CAD about the applicant’s mental health were circulated and
used by HRTO and SJTO staff to ignore her complaints and treat her in a disrespectful
manner. However, I find that there is no evidence that the staff members involved knew

that the applicant had a mental health disability, or that they considered it in their
discussions regarding the applicant’s complaints. Not only did the respondents’
witnesses testify that they were unaware that the applicant had any mental disability,
but the applicant acknowledged on cross-examination that there were no explicit
references made by the staff about her having a mental illness.
[97] The witnesses testified that it was not until the applicant raised the issue in one of
her February 23, 2017 emails that they were aware that she had any disability. In their
email correspondence between themselves and the applicant, reference is made only to
the facts that there have been previous complaints made by the applicant and that the
HRTO, through a VC’s order, had a communications protocol in place for the applicant’s
communications with them.
[98] The EA to the HRTO did email the EA on March 1, 2017, stating that she was
sending the EA a copy of the VC’s February 20, 2015 CAD. The EA testified that she
did not see the February 20, 2015 CAD until she was preparing for this hearing in the
fall of 2018. While it is quite possible that the EA did receive the February 20, 2015 CAD
before she said that she had, it does not establish that her actions were based on the
applicant’s mental health. I accept that she was “trying to get on the same page” as the
HRTO to have consistency in the communications protocol that was established. In any
event, even if the EA had read the VC’s comments, the February 20, 2015 CAD
concluded that there was no evidence provided to find that the applicant’s behaviour
was disability related.
[99] There were two main issues that gave rise to the applicant’s allegations, the first
being that the respondents refused to address her complaint during the course of the
ongoing adjudication, as stated in their letter of December 29, 2016 responding to her
complaint. In that letter they outline that if her case was ongoing, she may be advised
that action on her complaint would be postponed until the final decision was issued or
the member’s involvement in the case had ended. This was “to protect the fairness and
impartiality of an ongoing proceeding.” The letter also referred to the communications
protocol that was in place for the applicant to communicate with the HRTO, but no

restrictions were put in place regarding her communications with the SJTO at that time.
[100] The applicant took offense with the SJTO’s reference to the HRTO restrictions,
as stated in her February 22, 2017 emails in which she accuses the EA to the Director
of Operations of “not doing your job” and said that the EA to the Director of Operations
was “incompetent”.
[101] Although the applicant believes that there was no reason not to have proceeded
with the investigation of administrative staff matters as they did not involve the
adjudication of her ongoing case at the Tribunal. It is stated in the Policy that “action on
your complaint may be postponed if you have an ongoing proceeding. The complaints
process will be applied to ensure that it does not interfere with the fairness of any
proceeding or with adjudicative discretion and independence”, and the testimony of the
EA and the EA to the Director of Operations was consistent with this position. While the
applicant was not filing complaints about the VC’s conduct, the actions that she was
complaining about involved administrative staff involved with the processing of her
documents for that ongoing case and could have involved the VC’s input.
[102] There was insufficient evidence to establish whether or not the Policy was
directed at the applicant in a discriminatory manner; neither the complaint log (which
was not put into evidence) nor the EA could point to other complaint cases that were in
a similar situation as the applicant where the complaint was launched, but held in
abeyance, while there was an ongoing adjudication. The EA’s recollection was that
most of the complaints were filed after the individual cases had been completed.
[103] Requiring the applicant to resubmit her Application after her case was completed
might have seemed unnecessary, but this is not an evaluation of the reasonableness of
the Policy; what matters to this inquiry is whether the Policy was applied in a
discriminatory manner. I find there is no evidence of that being the case, despite the
applicant’s speculation that it was due to her disability and a “profiling” of her as being
difficult and necessary to control.
[104] The second major concern was the SJTO’s imposition of communications

restrictions on the applicant, as outlined in the EA’s March 3, 2017 letter. The applicant
asserted that the SJTO was preventing her from complaining and that this was a
reprisal, but the letter does not state that. It tells the applicant “any complaints about
staff or the adjudicator will not be addressed until the completion of your application
through the final decision, including reconsideration, in order to protect the fairness and
impartiality of the proceedings.” It then informs her that she can re-file a complaint via
one letter in accordance with the Policy. It further states that any calls received by staff
other than the complaints coordinator will not be accepted and emails to staff will not be
addressed (emphasis added). The applicant always had access to communicate with
the complaints coordinator, and she subsequently utilized this access to ask for and get
the information regarding the name of the security guard and his company.
[105] I find that the respondents reacted not to the applicant’s disability, but to her
behaviour. They found her communications to be numerous, repetitive, and at times
disrespectful, which is established by the evidence. In addition, I find the respondents
were never given any indication from the applicant that the reason for her behaviour
was due to a disability, and no evidence of a link between her behaviour and a disability
was presented at the hearing. Finally, there was no evidence that the respondent’s
intention in imposing the March 3, 2017 SJTO communications protocol on the applicant
was in retaliation for her having raised her complaints.
[106] In that the applicant sent multiple, similar emails on a few occasions (at least one
of which, to the EA of the Director of Operations, was disrespectful), and she
acknowledged that she called a lot of people because she was not getting an answer
about her complaints, the evidence shows that the respondents had cause to establish
a protocol about the applicant’s communications with no indication that her behaviour
was tied to her disability. It was not disputed that the applicant sent three similar emails
to the SJTO Complaints email and others on November 24, 2016 about her complaint
regarding the security staff; three similar emails on February 22, 2017 asking how the
SJTO knew about her communications protocols with the HRTO; three emails on
February 23, 2017, and one long email on February 27, 2017.

[107] The applicant asserted that the EA’s credibility should be challenged as she was
not the “real” decision maker behind the decisions regarding the applicant’s staff
complaints. The applicant also asserted that an adverse inference should be found
because the “real” decision makers were not brought forth as witnesses by the
respondents. I cannot draw any such inference about the fact that these witnesses were
not called by the respondents (who maintained throughout that the EA was the decision
maker).
[108] There is no evidence that the EA was not the decision maker; she testified that
she was. The EA acknowledged that she consulted with others, which was consistent
with the emails that were exchanged. In none of the emails did she ask for direction or
permission, instead she requested information and other’s input about the draft
response that she had prepared. There were no changes to the EA’s draft letter of
March 3, 2017 from the version that she sent to the Executive Chair that same
afternoon. When she commented that she wanted to “get on the same page” as the
HRTO it was in reference to having consistent communications protocols with the
applicant, not a request seeking the HRTO’s permission to proceed with her draft March
3, 2017 letter. In fact, the communication restrictions that she put in her March 3, 2017
letter were not the same as those placed in the February 20, 2015 CAD.
[109] Even if I were to accept the facts as alleged by the applicant (and for the most
part there are not many factual disputes regarding the key issues in this case), this does
not include accepting the applicant’s assumption that she was treated adversely
because of her disability. The applicant speculated and made assumptions that the
respondents’ actions were due to their need to control her because she was viewed as
a mentally ill person, however she could not refer to one instance when such a link was
articulated or suggested. Without such evidence, she has not discharged her burden of
establishing a prima facie case that she was discriminated against on the basis of a
prohibited ground, nor has she established that she was subjected to reprisals.
[110] The applicant raised concerns about procedural fairness and for those issues
that I have not previously provided a written response to I will address briefly here. I

note that the legislation and the Tribunal’s Rules of Procedure provide the Tribunal
members with the authority to make decisions regarding how a hearing is run; in
particular Rule 1.7 (n) provides that the Tribunal may “limit the evidence or submissions
on any issue”.
[111] The applicant asserted that her cross-examination was unfairly restricted; first
when she initially was cross-examining the EA and I allowed the respondents’ objection
to her questioning the EA about the EA’s qualifications to investigate complaints. The
applicant claims that she should have been allowed to explore her theory that it was
unlikely that the EA was the decision maker if the EA was unqualified for that role.
However, the EA’s qualifications or lack thereof are not evidence that she was not the
decision maker regarding the processing of these complaints. To begin with, the
respondents never asserted that the EA or anyone else investigated the complaints, the
complaints were held in abeyance pending the final decision in the ongoing case. So,
there was no relevance in this case of whether or not the EA had investigation skills or
qualifications. This information was also not relevant as it would not matter if the EA
was unqualified; she still was the person put in charge of deciding what was to happen
with the applicant’s staff complaints. It is possible that the EA should not have been put
in such a position if she was not qualified, but that is not the issue. This is not an inquiry
into how well or how poorly the SJTO, the HRTO, or MAG handle complaints; it is about
whether the process was applied to the applicant in a manner that discriminated against
her.
[112] The applicant also objected to the fact that the Tribunal limited her further cross-
examination of the EA to only the newly disclosed evidence. She had the opportunity to
cross-examine the EA fully during the first time the EA testified and was given the
opportunity to further cross-exam the EA about the new evidence. The applicant was
concerned that this splitting of her case hampered the flow and impact of her
questioning, however she was still able to fully question the EA and could put the
information from both cross-examinations into her final argument. I refer again to the
HRTO Rules of Procedure which give the Tribunal members the authority to limit the

evidence that is presented during a hearing.
[113] There is insufficient evidence to support the applicant’s speculation that her
complaints about the HRTO and SJTO staff were treated in the manner that they were
because of the perception that she had a mental disability, or that the staff intended to
reprise against her.
[114] There is no evidence that the respondents’ March 3, 2017 letter to the applicant
imposing a communications protocol with the SJTO was a retaliation for her filing her
complaints.
ORDER
[115] For the above reasons, the Application is dismissed.
Dated at Toronto, this 10th day of January, 2020.
“Signed by”
__________________________________
Kim Bernhardt
Member

2020 Hrto 19

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2020 Hrto 19

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HUMAN RIGHTS TRIBUNAL OF ONTARIO

2020 HRTO 19 (CanLII)

Her Majesty the Queen in Right of Ontario as represented by Ministry of the

Adjudicator: Kim Bernhardt

Date: January 10, 2020

File Number: 2017-29215-I

Citation: 2020 HRTO 19

Indexed as: Macanovic v. Ontario (Attorney General)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

[19] On December 2, 2016 the EA to the Director of Operations received a response

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

[62] According to the respondents, the applicant’s complaints were addressed in

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

The complainant in proceedings before human rights tribunals must show

2020 HRTO 19 (CanLII)

The applicant identifies as someone with an anxiety disorder. She

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

[91] The respondents submit that this application should be dismissed.

ANALYSIS AND DECISION

[93] To decide this issue, I am guided by the well-established principles for

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

2020 HRTO 19 (CanLII)

[115] For the above reasons, the Application is dismissed.

Dated at Toronto, this 10th day of January, 2020.

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