Chopra v. Mang, 2012 HRTO 229

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mukesh Chopra Applicant

-and-

Kenneth Mang Proposed Respondent

DECISION

Adjudicator: Michelle Flaherty Date: February 1, 2012 Citation: 2012 HRTO 229 Indexed as: Chopra v. Mang

APPEARANCES

Mukesh Chopra, Applicant | Randy Burch, Representative Kenneth Mang, Proposed Respondent | Joe Nemet, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against him with respect to employment on the basis of race, colour and ethnic origin. The applicant also alleges reprisal or threat of reprisal.

2For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success.

OVERVIEW OF THE PROCEEDINGS

3In the Application, the applicant names the Financial Services Commission of Ontario (“FSCO”) as a respondent. He lists Kenneth Mang as the contact person for FSCO.

4In a Case Assessment Direction (“CAD”) dated September 29, 2010, the Tribunal held that the matter would be dealt with by way of a summary hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

5The summary hearing was scheduled for May 5, 2011. On May 5, 2011, the applicant filed a Request to Withdraw an Application (Form 9) against FSCO. On the basis of the Form 9, the Tribunal cancelled the summary hearing.

6The applicant has withdrawn the Application against FSCO and FSCO is no longer a party to this proceeding. In submissions filed after May 5, 2011, however, the applicant argued that the Application should proceed because Kenneth Mang is also a respondent to the Application. FSCO objects to this on the basis that Mr. Mang is not a named respondent.

7Based on the materials filed by the applicant, there is some question as to Mr. Mang’s status in this proceeding. Page 4 of the Application is missing and appears not to have been filed. However, in the Form 9 the applicant lists “Ken Mang” as a respondent. Question 2 on Form 9 asks whether the applicant wishes to withdraw against all of the respondents. In response to this question, the applicant checked “no”. In response to Question 3, he indicated that he wished to withdraw against FSCO only.

8In a CAD dated May 19, 2011, I held that it was not necessary to determine whether Kenneth Mang is properly a party to the Application at this stage of the proceeding. I determined that the most appropriate manner of proceeding was to schedule a summary hearing to determine whether the Application has a reasonable prospect of success against Kenneth Mang.

9In the style of cause, I have identified Mr. Mang as a proposed respondent. However, this does not constitute a finding as to whether or not Mr. Mang has been named as a respondent in this matter.

10Mr. Mang received a copy of the May 19, 2011 CAD as well as notice of the summary hearing. The summary hearing was held by telephone conference call on January 27, 2012. At that time, I heard submissions from the applicant’s representative and from counsel for Mr. Mang.

The Allegations

11The applicant is an insurance agent licensed pursuant to the Insurance Act, R.S.O. 1990, c. I.8. As such, his business is regulated by FSCO. The applicant has a history of disciplinary matters with FSCO. His insurance licence was suspended for one month in 2006 and for two months in 2009.

12In 2008, the applicant’s former employer complained to FSCO, alleging misconduct by the applicant. Mr. Mang is an investigator employed by FSCO and he was assigned by FSCO to investigate the complaint against the applicant.

13At the hearing, the applicant agreed that his allegations against Mr. Mang fall into the following four categories:

a. that Kenneth Mang is of the same ethnic origin (Polish) as the applicant’s former employer and that, given their shared ethnic origin, the two of them colluded against the applicant;

b. that Kenneth Mang investigated the complaint against the applicant, while other brokers who faced multiple client complaints were not investigated;

c. that Kenneth Mang reprised against the applicant after he raised human rights issues. Mr. Mang is alleged to have reprised against the applicant by contacting regulatory authorities in the United States, contacting the applicant’s doctors, and by warning one of the applicant’s clients that the applicant’s licence would be revoked; and

d. that in the course of his investigation, Mr. Mang posed a series of questions and made comments that were discriminatory, irrelevant, and a misuse of his authority. These alleged questions or comments include:

1. How much do you earn?
2. Do you pay your taxes?
3. Are you married and do you live in the same house?
4. Is this your business card?
5. How many Polish clients do you have?
6. Did you have sex with [your former employer]?
7. I am the regulator, I can revoke your licence if you don’t cooperate.
8. I am only investigating you, I have my orders from higher up.
9. The superintendent of FSCO does not want you sending complaints to him.
10. You must be lying to your clients.
11. Intimidating persons interviewed in the investigation by identifying himself as an investigator and stating that he was investigating the applicant.
12. Not using salutations in emails.
13. Of which clubs are you a member?
14. How do you get your clients? How many clients do you have?
15. What political party do you belong to?
16. How much is your business worth?
17. How do you sell?

THE ISSUES

14The applicant has alleged discrimination in employment, although an employment relationship between the applicant and Kenneth Mang is not apparent from the materials filed by the parties.

15I make no finding as to whether a service or employment relationship exists between the applicant and Kenneth Mang. However, for the purposes of the summary hearing and without requiring the applicant to amend the Application, I have considered whether the applicant has a reasonable prospect of showing that he was discriminated against on the basis of service and/or employment or that he was reprised against. In the particular circumstances of this case and in light of my conclusions, this does not prejudice Mr. Mang.

16The material provisions of the Code are ss. 1, 5 and 8, which state:

1. Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

2. Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability

3. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

17In determining this summary hearing I must decide whether the Application has a reasonable prospect of success within the meaning of Rule 19A.1. In other words, I must determine whether the applicant has a reasonable prospect of showing that Mr. Mang treated him differently from others and that the applicant’s race, colour, and ethnic origin were a factor in this treatment. I must also determine whether the applicant has a reasonable prospect of establishing that Mr. Mang reprised against him in the sense that he took an action or made a threat with the intention of retaliating against the applicant because of he had asserted rights under the Code: Noble v. York University, 2010 HRTO 878, at paras. 33-34.

ANALYSIS

Collusion based on shared ethnic origin

18At the hearing, in addition to arguing that Mr. Mang and the former employer’s allegedly Polish ethnic origins were a factor in their decision to collude against him, the applicant took the position that his race, colour and ethnic origin were factors in their desire to harm him.

19Mr. Mang denies the allegation. He disputes that the investigation was improper and, in any event, states that he is of German (not Polish) extraction.

20I asked the applicant to identify what, if any, evidence he expects to bring in order to establish the differential treatment he alleges. His representative explained that the applicant’s former employer had testified in a civil proceeding and that her evidence in that matter was not credible. The court has not yet rendered a decision in the civil proceeding, but the applicant expects that the decision will be favourable to him and that the court’s findings regarding the credibility of the former employer will assist the Tribunal in determining the Application.

21The applicant’s representative also argued that the cross-examination of Mr. Mang would assist him in establishing the applicant’s case. Although he could not identify anything specific, he stated that he was hopeful the cross-examination would expose Mr. Mang’s biases and prejudices.

22I find that this allegation has no reasonable prospect of success. The applicant has made a bald allegation of discrimination that is premised on speculation and on the applicant’s own presumptions about the ethnic origin of others. The applicant could not refer to any evidence or expected evidence that could show that he was treated differently than others by Mr. Mang or that Code-grounds were a factor in any such treatment.

23I fail to see how a court’s anticipated assessment of the credibility of the applicant’s former employer in an unrelated proceeding could be of assistance to the Tribunal in determining the Application. I find that it does not assist the applicant in demonstrating that this portion of the Application has a reasonable prospect of success.

The investigation of the complaint

24The applicant alleges that he experienced discrimination because he was investigated, while other brokers (who faced multiple complaints from clients) were not.

25At the hearing, the applicant accepted that Mr. Mang does not initiate investigations or determine which brokers should or should not be investigated. These decisions are made by FSCO. Mr. Mang’s job is to conduct investigations in matters assigned to him by his employer.

26I find that these allegations have no reasonable prospect of success. As I have indicated, FSCO is no longer a party to this proceeding. Further, there is no dispute that Mr. Mang had no role to play in the decision to investigate the applicant.

Reprisal

27As I have indicated, in order to establish reprisal, the applicant must show that Mr. Mang took an action or made a threat with the intention of retaliating against the applicant because the latter had asserted rights under the Code. While the applicant identified alleged incidents of reprisal, he did not identify any evidentiary basis by which he intends to connect these incidents to a reprisal for asserting rights under the Code.

28In my view, given the applicant’s disciplinary history with FSCO (which included findings and/or admissions by the applicant that he had falsified documents and provided inaccurate information to FSCO), it was reasonable for Mr. Mang’s investigation to include contact with U.S. authorities to determine what information the applicant had provided to them. I note that the disciplinary allegations against the applicant include allegations that he provided false information to U.S. insurance regulators. In the circumstances, it was also reasonable for the investigation to include contact with a doctor’s office to ensure that a medical note containing grammatical and spelling errors was authentic. It could also be expected that, in order to obtain information from them during the course of the investigation, Mr. Mang would contact the applicant’s clients and identify himself as an investigator.

29The applicant states that he raised human rights issues with FSCO repeatedly and well before filing the Application. At the hearing, I asked the applicant how the alleged reprisal measures could be distinguished from steps Mr. Mang had taken earlier in the investigation, prior to any human rights issues being raised. The applicant provided no answer, other than to say that Mr. Mang’s actions were overzealous and beyond his mandate as a FSCO investigator.

30The alleged acts of reprisal identified by the applicant are very similar to his more general complaints about the investigation. For example, while he states that contact with a particular client constituted a reprisal measure, the Application contains complaints about Mr. Mang’s contact with clients, generally.

31There is nothing in the applicant’s materials or his submissions that suggests that the scope or tenor of Mr. Mang’s investigation changed after human rights issues were raised. Similarly, there is nothing to suggest that the alleged reprisals constitute anything more than Mr. Mang taking reasonable steps to pursue an ongoing investigation, in light of the circumstances and the applicant’s disciplinary history. There is nothing in the applicant’s submissions or in the nature of the alleged reprisals that substantiates the allegation that these steps were tainted by an intention to reprise against him.

32For these reasons, I find that the allegations of reprisal have no reasonable prospect of success.

Comments and questions during the investigation

33The applicant’s representative acknowledged that the comments and questions listed in paragraph 13, above, are not discriminatory on their face. However, he urged me to consider them from the applicant’s perspective and argued that the applicant could reasonably interpret some of the comments and questions as discriminatory. For example, he argued that Mr. Mang’s question about paying taxes is discriminatory because it implies that persons of the applicant’s racial and ethnic background do not pay their taxes.

34Counsel for Mr. Mang filed a transcript of an investigation meeting attended by Mr. Mang and the applicant. At the hearing, the applicant disputed the conclusions reached as a result of that meeting, but accepted that the transcript of the meeting was accurate and could be relied upon by the Tribunal.

35The transcript provides context for a number of Mr. Mang’s comments and questions. For example, the questions about the nature of the applicant’s relationship with his former employer were posed in the context of the applicant stating that his former employer was romantically interested and obsessed with him. Questions about whether the applicant had Polish clients arose when Mr. Mang presented the applicant with a list of names and asked if he recognized any of them. The applicant stated, “These are all Polish names.” The applicant was then asked if he had any clients with Polish names.

36I appreciate that discrimination can be subtle and that an apparently neutral comment can be discriminatory in particular circumstances. However, based on my review of the transcript, the fact that Mr. Mang’s comments and questions were made in an investigatory context and, in some cases, in direct response to a position taken by the applicant, I find there is no reasonable prospect that the applicant can succeed in establishing that the comments and questions were discriminatory.

Other issues raised by the applicant

37Many of the applicant’s submissions related to allegations that Mr. Mang was an overzealous investigator and that he exceeded his investigatory authority.

38Counsel took the position that Mr. Mang acted within the scope of his employment and the scope of his investigatory mandate at all times. He also argued that Mr. Mang’s investigation of the applicant was professional and appropriate.

39It is not necessary for me to resolve this factual dispute. The role of the Tribunal is not to determine general questions of fairness, nor is it to ensure a FSCO investigator complies with relevant statutes or policies. The Tribunal’s jurisdiction is limited to the determination of whether an applicant experienced discrimination under the Code.

40While the applicant has stated that he feels mistreated by Mr. Mang, he has not explained how this alleged mistreatment could form the basis of a finding of discrimination under the Code.

DECISION

41For all of the above reasons, the Application is dismissed. I find that it has no reasonable prospect of success.