Xu v. Durham Regional Police Service, 2014 HRTO 331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fan Xu

Applicant

-and-

Durham Regional Police Service, John Deagle and Joan Deagle

Respondents

INTERIM DECISION

Adjudicator: Ruth Carey Date: March 11, 2014 Citation: 2014 HRTO 331 Indexed as: Xu v. Durham Regional Police Service

1This is an Application filed by the applicant on November 7, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of race, colour, ancestry, place of origin, ethnic origin, and association with a person identified by a protected ground.

2On January 20, 2014, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) informing the applicant that:

It appears the Application is outside the HRTO’s jurisdiction because:

• A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s).

3The NOID asked the applicant to provide written submissions on the Tribunal’s jurisdiction by February 19, 2014. On January 21, 2014, the applicant wrote to the Tribunal. His letter does not contain submissions as to the Tribunal’s jurisdiction but instead contains more particulars about his file with the Durham Regional Police Service (the “police respondent”).

4Having reviewed this Application, and the applicant’s letter of January 21, 2014, I find that it is not plain and obvious that the Tribunal lacks jurisdiction to deal with the allegations in the Application.

5However, the Tribunal directs on its own initiative that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The respondents need not file a Response to the Application at this time.

6Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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 alleged prohibited ground. 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.

8The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment within the social areas covered, and on the grounds set out, in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove the behaviour complained of has occurred in the context of one of the covered social areas and that there is a link between a respondent’s alleged actions and a Code ground.

9This Application alleges that the personal respondents are next door neighbours of the applicant and his spouse. The applicant owns his own home, but it is semi-attached, so there is a shared wall with the personal respondents’ home. Essentially the Application alleges the personal respondents are harassing the applicant in accommodation contrary to s. 2(2) of the Code. That provision says:

Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. [Emphasis added.]

10The parties should be prepared to discuss at the summary hearing the issue of whether or not this provision applies to the behaviour of a neighbour where the applicant and the neighbour both own their own homes and live in townhouses that share a common wall.

11The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success. The applicant should be prepared to point to proposed evidence which will prove a link between the respondents’ actions and the grounds cited. No witnesses will give evidence during the summary hearing.

12If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

13A copy of the Application and the applicant’s letter dated January 21, 2014, is delivered to the respondents with this Interim Decision. The respondents need not file any materials or a Response to the Application unless directed to do so by the Tribunal. The respondents must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered.

14A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

15The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

DIRECTIONS

16The respondents must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered.

17The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

18I am not seized.