D’Mello v. Law Society of Upper Canada, 2013 HRTO 1245

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roy Francis D’Mello

Applicant

-and-

Law Society of Upper Canada

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: July 17, 2013

Citation: 2013 HRTO 1245

Indexed as: D’Mello v. Law Society of Upper Canada

APPEARANCES

Roy Francis D’Mello, Applicant

Self-represented

The Law Society of Upper Canada, Respondent

Aaron Dantowitz, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of race, colour, ancestry, place of origin and ethnic origin.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on November 23, 2012, directing that a summary hearing take place.

3The summary hearing took place by conference call and all parties participated. Additionally, the respondent was provided with the opportunity to provide written submissions in response to jurisprudence the applicant cited at the summary hearing, but had not provided to the Tribunal or to the respondent in advance. An opportunity was also provided to the applicant to make reply submissions, should he wish to do so.

DECISION

4For the reasons that follow, I find that this matter has no reasonable prospect of success and it is dismissed.

ANALYSIS

Summary Hearings

5In 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.

6In 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:

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.

Application to the Facts

7The applicant is a member of the Law Society of Upper Canada. The applicant alleges that the respondent notified him that a complaint had been filed against him by a former client, but that the respondent did not deal with the matter promptly or in good faith, nor did it keep him informed with regard to its investigation of the complaint. He alleges that it is a “simple matter” and that it should not take more than one year to investigate. He identifies himself as East Indian and alleges that the respondent is “targeting” lawyers who are members of minorities.

8At the hearing, he indicated that he has now been advised by the respondent that it has closed the file relating to the complaint against him, but he continues to assert that he has been dealt with in a discriminatory fashion.

9He alleges that the respondent misstated the nature of the complaint, advising him that it related to an allegation of “fraud”. In fact, he alleges, it was a very simple matter which should have been screened out “at intake”. He alleges that the investigation took too long and that though the respondent wrote him periodically inviting him to contact the investigator with any questions he had, whenever he called, the investigator did not give him information.

10When I asked him what evidence he would rely upon to establish that he was treated differently than any other lawyer being investigated by the respondent, he stated that the respondent’s brochure indicates that they do not necessarily investigate every complaint filed, and that when they do open a file the matter is dealt with in a timely fashion and that they will provide updates and answers to parties’ questions. He indicated that he concludes from this that others are treated differently from the way in which he was treated, and he indicated that the respondent knows he is a “minority person”.

11The applicant cited Smith v. Gus’ No Frills, 2011 HRTO 850, Sinclair v. London (City), 2008 HRTO 48, and Radek v. Henderson Development (Canada) Ltd. (No. 3), (2005) 2005 BCHRT 302, 52 C.H.R.R. D/430, to say that allegations of discrimination can be based on circumstantial evidence and inference. He says he “knows when someone is profiling and discriminating”. He submitted that the respondent acted in an unfair manner toward him and that this leads to a rebuttable presumption that he has been discriminated against. He submitted that he expects an explanation from the respondent for its actions.

12The respondent submitted that the applicant had not indicated any evidentiary basis for his assertion that it does “racial profiling” and noted that he had made no such allegation in his Application. It repeated this submission in its post-hearing written submissions. I note that in response to the respondent’s post-hearing written submissions, the applicant wrote to the Tribunal stating that if the Application did not allege racial profiling, it was in error and he requested “the opportunity to do so within a reasonable period of time”. The Tribunal is not in receipt of any further filings from the applicant.

13The respondent submitted that while it appreciates that the applicant has found the process of being investigated frustrating, the respondent’s actions in investigating a complaint do not engage the Code. It submitted that the applicant cannot simply state that he is a member of a racial minority to found an Application at the Tribunal. It submitted that there must be something to link the respondent’s alleged actions to the grounds of discrimination he has cited, but there is nothing.

14While I too appreciate that the applicant found the investigation process difficult, he has made bald assertions of discrimination and I am not satisfied that he has pointed to any evidence which could establish differential treatment or that the respondent’s actions are linked to the Code-protected grounds which he cites.

15Even if he had explicitly alleged “racial profiling” in his Application, the applicant would still be required to show that he experienced differential treatment. He has pointed to a brochure as evidence that others are treated differently than he was. The brochure sets out the standards the respondent publically declares itself to have, and while the applicant may dispute the respondent’s success in meeting its standards, he has not pointed to any evidence that others are in fact treated differently than he has been treated by the respondent.

16In addition to the fact that he has not pointed to evidence of differential treatment, he has not provided any indication of evidence linking the respondent’s actions and the protected grounds he cites. In Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at paragraph 25, the Tribunal stated:

I accept the argument of the applicant’s counsel that discrimination based on racer or colour can indeed by subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground. I cannot find, based on the Application and the submissions of the applicant and her counsel, that there is a reasonable prospect that the applicant can prove that she was discriminated against by the respondents based on her colour.

17Similarly, in Villella v. Brampton (City), 2011 HRTO 1085 at paragraph 10, the Tribunal stated:

The applicant must show more than mere subjective suspicion to establish a link between the respondent’s conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.

18The applicant takes the position that he has been unfairly dealt with and urges the conclusion that he has been discriminated against on the grounds cited. In Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at paragraph 17, the Tribunal stated:

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.

19He asserts that the respondent “targets minority lawyers”. The applicant must be able to show that the respondent has treated him differently as compared to others based on his race, colour, ancestry, place of origin or ethnic origin for his Application to be successful. He has not, however, been able to identify any evidence which would, if proven, establish differential treatment or a connection between the respondent’s alleged actions and the cited grounds. Without such evidence, his Application cannot succeed.

20I find that there is no reasonable prospect that the Application will succeed and it is dismissed.