Kapoor v. Registered Insurance Brokers of Ontario, 2012 HRTO 478

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shashi Kant Kapoor

Applicant

-and-

Registered Insurance Brokers of Ontario and Jeff Bear

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: March 7, 2012

Citation: 2012 HRTO 478

Indexed as: Kapoor v. Registered Insurance Brokers of Ontario

APPEARANCES:

Shashi Kant Kapoor, Applicant ) self-represented

Registered Insurance Brokers of Ontario, ) John Goldsmith, and Jeff Bear, Respondents ) Patrick Ballyntine, Counsel

1This is an Application filed on July 2, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondents discriminated against him in Membership in a Vocational Association on the basis of race, colour, place of origin and ethnic origin.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on August 11, 2011, directing that a Summary Hearing take place. The Summary Hearing was held by conference call on January 17, 2012.

DECISION

3For the reasons that follow I find that this matter has no reasonable chance of success and the Application is dismissed.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue 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 a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

8. 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.

9. 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.

Application to the Facts

6The applicant identifies himself as “a person of South Asian, Brown, Hindu, India, Indo-Canadian and Indian”. In his Application, he alleged that he was disciplined by the Registered Insurance Brokers of Ontario (RIBO) but that Caucasian brokers in the same circumstances were not. He alleged that he hired a Caucasian broker who was not submitting insurance applications and client money in a timely fashion and that he reported this to the RIBO. He alleged that he learned that this employee had done the same thing while working for other brokers previously, and that the other brokers had also reported to the RIBO, but that nothing was done by the RIBO. He alleged that finally, on one of his complaints, the employee’s licence was revoked. He alleged that the RIBO faulted him for the employee’s behaviour and that it initially put a restriction on the applicant, requiring him to work under supervision for a few years. He alleged that once the RIBO realized it was impossible for the applicant to get future insurance contracts, it gave him an unrestricted licence, with future brokers only being allowed to work from the applicant’s office. He alleged that in the summer of 2010, the RIBO newsletter reported three individuals committing similar violations (misappropriation of client funds) to the violations committed by his former employee, but that their employer brokers, who were Caucasian, were not disciplined in the same way he was.

7He also appears to allege discrimination in, the RIBO would not accept his suggestion to license a new class of insurance brokerage for brokers who had not yet acquired two contracts from insurers. He alleges that the RIBO permits Caucasian brokers without two contracts to continue in business and that the respondents protect the interests of Caucasian brokers by not initiating disciplinary action against brokers doing unethical work. He provided emails which he sent to the RIBO in October, 2010, after filing this Application, making a complaint about two particular brokers who he alleged did not have the required two markets. He also provided a response from the personal respondent, wherein he stated that given the Application, it was not deemed prudent for any RIBO staff member to converse or correspond with him on any matter relating to his complaint.

8In their Response, the respondents deny any discrimination, and further submit that at all material times the personal respondent Mr. Bear was acting in his capacity of CEO of the RIBO and not in his personal capacity. They identify the RIBO as the self-regulatory body for insurance brokers in Ontario and indicate that they are governed by the Registered Insurance Brokers Act, R.S.O., 1990, c. R.19 (“RIBO Act”), its Regulations and by-laws. They submit that the legislation provides them with the authority to establish requirements which must be met for a business to obtain registration as a brokerage and that this exclusive jurisdiction has been affirmed by the Divisional Court in Jaguar Insurance Brokers Inc. v. Registered Insurance Brokers of Ontario [2005] O.J. No. 5069 (“Jaguar”) and subsequently upheld by the Ontario Court of Appeal in Jaguar Insurance Brokers Inc. v. Registered Insurance Brokers of Ontario [2006] O.J. No 5084.

9They submit that one of the requirements which must be met for a certificate of registration as a brokerage is the “two market contract” requirement. In applying for a certificate of registration as an active firm, the applicant must provide “at least two letters of intent from contracted insurers or two standard market brokerage contracts”. They allege that the applicant is seeking to become registered as a broker without the required contracted markets.

10The respondents allege that the applicant’s firm, Shashi Insurance Brokers Ltd., was registered as a broker from 1999 to 2004. They agree that the applicant hired an individual who was the subject of complaints and whose licence was subsequently revoked by the RIBO in 2005. They submit there is no factual support for the applicant’s allegation that the individual was not disciplined because he is Caucasian.

11The respondents also submit that the applicant has not been sanctioned or disciplined by the RIBO. They allege that the applicant’s firm was deregistered in November 2004 as a result of the cancellation of its Errors and Omissions Insurance and that the RIBO Act stipulates a brokerage must be deregistered if it does not maintain such insurance. The respondents allege that they notified the applicant several times in late 2005 that his registration was about to expire and requested his resignation, which would preserve his ability to reinstate his licence, even though he was inactive, for a further year. They allege that he requested the opportunity to resign, and that this was granted to him.

12They allege that the applicant’s registration was subsequently reinstated in June 2006 when he became an employee of another firm. They allege that in late 2006, early 2007 and again in 2008, he approached the RIBO regarding his desire to begin his own brokerage firm. They allege that in June 2008, the RIBO gave him permission to act as a Principal Broker. In an April 2008 e-mail to him, the RIBO indicated that permission would be granted under the condition that any RIBO registered employee he hired must “work directly under your supervision in your business premises and not from any separate or other location, like their homes”. They allege that he resigned again in December 2008 as he had been unable to obtain two markets, as required. They allege also that his registration was again reinstated in November 2009 when he became an employee of another firm. They allege that they were advised in March 2010 that he had moved to another firm and that then in April, 2010, they were advised that the second firm had terminated the relationship with him.

13The respondents allege that they subsequently received correspondence from the applicant, suggesting that they introduce a new category of broker, who would not be required to have two contracts at the outset and also alleging that the RIBO was creating an “uneven playing field especially to South-Asian brokers”, as he had found other brokers guilty of improper conduct. He did not provide particulars or make a complaint regarding specific brokers. The personal respondent Mr. Bear answered the applicant’s correspondence, indicating that his suggestion had been put to the Council of the RIBO at a Board meeting, but that the Council had decided not to alter the business requirements in place and that it would be undertaking a review of brokerages and their actual market capacity.

14The respondents deny that they ever disciplined the applicant or sanctioned him in any way as a result of his employee’s conduct. They submit that there is not any basis on which to connect the published disciplinary cases cited by the applicant with discrimination on the basis of race, colour, place of origin and/or ethnic origin.

15With regard to discipline of brokers, the respondents submit that discipline is conducted through the Complaints Committee and Discipline Committee and that the applicant has failed to provide any particulars or factual basis for his allegations that the respondents are protecting the interests of Caucasian brokers by not disciplining them. The respondents note that the applicant had made no specific complaints for them to investigate. In any event, they submit that even if the RIBO failed to monitor certain brokers, this would not in itself constitute discrimination against the applicant or brokers of South Asian origin.

16In his Reply, the applicant submits that the RIBO did take disciplinary action against him, as they did not let him operate a brokerage on his own from 2004 to 2008. He also reiterates that many complaints against the individual he hired were ignored. He also submits that after filing this Application he made two complaints regarding Caucasian brokers, but that these complaints are not being investigated.

Summary Hearing

17At the summary hearing, the applicant submitted that the fact that his former employee, who is a Caucasian, was not disciplined earlier by the RIBO, had a negative impact on his business is evidence of racism. He submitted that once the former employee’s dossier with the RIBO is disclosed, it will provide proof of the racism he alleges and his Application will succeed. His reference to the former employee’s disciplinary record is of a vague and general nature. He has not articulated what evidence would be contained in the disciplinary record which would assist him in establishing discrimination on the grounds he alleges, but he suggests that the former employee’s disciplinary record was extensive and included many complaints. If this is indeed the fact which he believes the record would establish, an extensive record of complaints and discipline or even a failure to discipline would not provide a link between the respondents’ alleged actions and the grounds of discrimination he alleges. He has suggested no other reason for citing the former employee’s disciplinary record as evidence and I do not find that he has indicated he would be able to call evidence to establish a link between the way the respondents dealt with his former employee and discrimination against him on the grounds of race, colour, place of origin or ethnic origin.

18The applicant also submitted that the fact that in making submissions to the Tribunal, the respondents were willing to disclose the employment history of a South Asian broker, but not “the dossier” of the Caucasian broker who was the applicant’s former employee, is further evidence of racism. In their Response, the respondent listed documents which support their Response, and included the “Discipline files” of the applicant’s former employee, stating that those documents would “demonstrate that the RIBO was responsive in addressing complaints with respect to” the former employee. They indicated, however, that the documents were “subject to statutory privilege” and would not be produced without an order from the Tribunal. The allegation made by the applicant at the summary hearing is not contained in the Application, nor was it the subject of a request to amend the Application, and it is not necessary for me to consider it, though I note that the document submitted by the respondents is an employment history while the document which the respondents claim is privileged is a disciplinary file.

19The applicant also submitted that he was subject to sanctions or disciplinary action but that the employers of the three brokers reported in the RIBO newsletter did not receive the same treatment as he did, and that this is evidence of discrimination. He submitted that the RIBO was aware of the fact that the employers of these three brokers were Caucasian due to their active and visible participation in the RIBO. Though the respondents submitted that the applicant was never subject to the disciplinary process and never had sanctions imposed on him, he submitted that a letter sent by counsel at the RIBO on November 6, 2006 to his lawyer, indicates the contrary. The letter indicated that it was the RIBO’s opinion that as a Principal Broker, the applicant had fallen short of exercising his responsibilities in a reasonable way when responsible for the supervision and direction of the employee whose licence was revoked. It indicated that the RIBO staff would oppose the applicant’s efforts to regain his previous designation as a Principal Broker. It also explained the process for making an application for designation as Principal Broker and noted that if the Qualification and Registration Committee accepted the recommendation of the RIBO staff and were to issue a Notice of Proposal to Refuse, the applicant would be entitled to request a Hearing before the committee. It stated that at the hearing, he would have the “opportunity to demonstrate that he is capable of once again assuming the role of Principal Broker” and he would have the right to legal representation at the hearing.

20The applicant submitted that the fact he had to re-apply for permission to start his own brokerage again shows that sanctions were placed on him, though he did not dispute the fact that his licence was revoked when he no longer had Errors and Omissions Insurance, a matter not controlled by the RIBO. The applicant did not disagree with the respondent’s assertion that after the revocation of his licence, he did not seek designation as a Principal Broker until he sought designation as a Principal Broker without two markets.

21The applicant has been unable to point to evidence which would support his contention that he has been disciplined or had sanctions imposed on him. The applicant has not disputed that the reason his firm was deregistered was because he had no Errors and Omissions Insurance. After having his firm deregistered, should he wish to again be designated as a Principal Broker, he had to make application once again. Though he provided a November 2006 letter from the RIBO indicating that staff would not support him should he seek designation as a Principal Broker, he has not pointed to any evidence to indicate that any of three Caucasian Principal Brokers whose employees were found guilty of misconduct, had their firms deregistered for lack of Errors and Omissions Insurance. If they were not deregistered, these Principal Brokers would not have to make application again for designation as Principal Brokers. For his Application to be successful, he would have to be able to point to evidence that he was treated differently on a prohibited ground. In pointing to these other Principal Brokers, however, the applicant points to individuals whose circumstances do not appear to parallel his own, and, without more, what did or did not happen to them is not evidence of discrimination against him on a prohibited ground.

22Further, though the RIBO indicated in its e-mail to him in April 2008 that any RIBO registered employee he hired must work directly under his supervision and not at a separate location, the applicant has not pointed to evidence to indicate that this arrangement was differential treatment on the basis of any prohibited ground.

23The applicant submitted that the personal respondent, and he appears to submit that the RIBO, failed in their duty to enforce the RIBO Act evenly and their actions amounted to favouritism toward Caucasian brokers. He submitted that this is further evidence of racism. He submitted that unethical practices and operating in violation of the two market rule are widespread among Caucasian brokers, but that nothing is done. He submitted that he sent emails on October 7, 2010 and October 8, 2010 to the personal respondent regarding this matter, but that nothing was done as the respondents are giving “undue business advantage to Caucasian brokers”. He submitted that 99% of brokers are Caucasian and that this is a reliable statistic.

24Further, he referred to the Jaguar case and submitted that it shows that once the RIBO learned that a South Asian broker, Mr. Chadha, was working without the required two markets, they “de-listed” him. He submitted that the RIBO permits brokers to work without two markets, but if they find out that the broker is South Asian, they “de-list” the broker. He does not submit that he was ever a broker working without two markets or that he was “de-listed” or had his licence revoked for that reason.

25Again, the applicant’s firm was not deregistered for not operating in accordance with the two market rule. Rather, it was deregistered when he no longer had Errors and Omissions Insurance. Subsequently, he has been unable to convince the RIBO to establish a new class of brokers, who do not meet the two market requirement, for designation as a Principal Broker. This is not evidence that he was treated differently from other brokers on grounds prohibited by the Code. Further, the fact that after filing his Application he made a specific complaint to the RIBO regarding two Caucasian brokers is not evidence that he has been treated differently on a prohibited ground.

26The applicant also appears to allege that the two market requirement is discriminatory, but, though he complains of unequal enforcement of the requirement, he has pointed to no evidence upon which he could rely to establish that the requirement itself has a different impact on South Asian Brokers than it does on anyone else.

27He also submitted that since he filed his Application, the RIBO has been giving him a bad reference and he has been unable to secure employment. This is not an allegation included in the Application, nor is it the subject of a request to amend the Application and is not before me for consideration.

28The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.

29The Case Assessment Direction issued in this matter indicated clearly that at the summary hearing the applicant was to “point to evidence on which [he] will prove a link between the respondents’ actions and the grounds cited, given the explanation in the Response”. The applicant must be able to show that the respondents have treated him differently as compared to others based on his race, colour, place of origin or ethnic origin for his Application to be successful. He has not, however, been able to identify evidence which would, if proven, provide the necessary link between the respondents’ actions and the grounds cited. Without such evidence, his Application cannot succeed.

30I find that there is no reasonable prospect that the Application will succeed and it is dismissed.