Carolina Cheung v. The Corporation of the City of Vaughan, 2012 HRTO 2222

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carolina Cheung

Applicant

-and-

The Corporation of the City of Vaughan

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: November 28, 2012

Citation: 2012 HRTO 2222

Indexed as: Cheung v. Vaughan (City)

APPEARANCES

Carolina Cheung, Applicant

Self-represented

The Corporation of the City of Vaughan, Respondent

Nancy Salerno, Counsel

Introduction

1The applicant filed a complaint with the City of Vaughan alleging that her neighbour had violated City by-laws due to the width of his driveway and the location of his air conditioner. The City of Vaughan investigated the complaint but ultimately decided to take no action. The applicant claims that the City discriminated against her on the basis of race and ethnicity by closing the file on her complaint. She also alleges that City staff harassed and discriminated against her during their investigation of her complaint.

2By Case Assessment Direction dated August 15, 2012, the Tribunal, on its own initiative, directed that the matter be scheduled for a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The applicant was directed to make argument and point to evidence which would support a connection between the City’s alleged actions and the grounds protected under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

ANALYSIS

Summary Hearings

3The issue in a summary hearing is whether the application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the application or part of the application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

Application to the Facts

6I have reviewed the materials filed by the applicant and considered her oral submissions. The applicant identifies as a Chinese-Canadian woman. There is no doubt that she is frustrated by the dispute with her neighbour and with her interactions with the City. However, for the reasons below, I find that her Application to the Tribunal has no reasonable prospect of success.

Closing of File

7In her Application, the applicant focused in particular on the widening of her neighbour’s driveway, which she believes was done in violation of the applicable City by-law. Following a site inspection, the City initially issued a notice to the applicant’s neighbour advising that he had violated City by-laws by failing to obtain a driveway-widening permit and because his driveway exceeded the width permitted by the applicable by-law. As it turned out, according to the City, the notice was issued in error as a permit is not required to widen a private driveway and the driveway complied with the by-law due to the width of the property in question.

8During a further investigation of the complaint, a City by-law officer attended at the property several times to review the situation and to take measurements. The officer found that, although there was a two-foot patch of asphalt on the City’s boulevard, the encroachment was minor. The City concluded that it was not in the public interest for it to pursue the infraction in court given its limited resources and the fact that other driveways in the area had been widened with similar encroachments. As for the location of the air conditioner, the officer found that the air conditioner was placed approximately two inches closer to the property line than is permitted under the City’s by-laws. The City concluded that this also was a minor encroachment. The City decided to close its file with respect to the complaint. It informed the applicant’s neighbour that it had closed its file but did not inform the applicant. The applicant found out that the City had closed its file after she consulted a City councillor about the matter and also through a freedom of information request.

9The applicant believes that the City acted unfairly in closing the file on her complaint after finding these minor encroachments. However, the issue of whether or not it was fair or appropriate for the City to close its file in the matter is not one that the Tribunal has the jurisdiction to decide. The Tribunal only has jurisdiction to determine whether there has been a violation of the Code.

10When asked why she believed that the City’s actions were discriminatory on the basis of her race and ethnicity, the applicant pointed to what she believed to be discrepancies in treatment by the City. She said that the City conducted public hearings into other property modifications in her neighbourhood whereas it closed the file in her case. From this, the applicant concluded that the City closed the file on her complaint due to her race and/or ethnicity. In response, the respondent states that the other property modifications referred to by the applicant presented different facts. The materials filed with the Tribunal support the respondent’s position. From these materials, it is evident that the other situations that the applicant referred to involved different factual circumstances. Two of the other three situations involved applications for variances for proposed backyard decks. The third involved a number of different property modifications beyond just the widening of a driveway.

11In order to establish that the Application has a reasonable prospect of success, the applicant had the onus to show that the City’s alleged conducted occurred in whole or in part because of her race or ethnicity. The applicant had to provide evidence to demonstrate that she was treated differently because of her race or ethnicity or suggest facts that would lead to such an inference being drawn. I find that the fact that the City treated other situations differently does not establish the necessary connection to the applicant’s race or ethnicity since these other situations presented different facts. Therefore, there is no reasonable prospect that the applicant will succeed in showing that the City’s decision to close the file in her case occurred in whole or in part due to her race or ethnicity.

Other Allegations of Harassment and Discrimination

12The applicant felt discriminated against when she was not informed that the City was closing the file related to her complaint. She felt she had been “lied” to by the City as it first found a by-law violation but later concluded that there was no violation. The applicant also alleged that she was harassed by the by-law officer who investigated her complaint because he asked her to accompany him as he took the measurements of the driveway in question. Finally, the applicant felt harassed when the by-law officer asked her to remove her evergreen bed. Even if I accepted these allegations regarding the applicant’s interactions with the City and its staff, there is no evidence that those interactions constituted discrimination or harassment under the Code, which must be based on a ground enumerated in the Code.

13In light of the above, I find that there is no reasonable prospect that this Application will succeed and it is dismissed.