Navaratnam Kandasamy v. Toronto Police Services Board, 2015 HRTO 618

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Navaratnam Kandasamy Applicant

-and-

Toronto Police Services Board Respondent

DECISION

Adjudicator: Catherine Bickley

Date: May 12, 2015

Citation: 2015 HRTO 618

Indexed as: Kandasamy v. Toronto Police Services Board

APPEARANCES

Navaratnam Kandasamy, Applicant Self-represented

Toronto Police Services Board, Respondents Robert J. Baldwin, Counsel

1This decision considers the submissions made by the parties during a Summary Hearing held by conference call and decides whether this Application will proceed to a full hearing or be dismissed because it has no reasonable prospect of success.

decision

2Having carefully considered the parties’ submissions, I have concluded that this Application has no reasonable prospect of success. Accordingly, it is dismissed for the reasons set out below.

3On June 20, 2014, this Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services and employment because of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability. The applicant describes himself as “Sri-Lankan Tamil-Canadian, brown, gray hair, black eye.”

4On July 17, 2014, the Tribunal issued a Notice of Intent to Dismiss (the “NOID”), because it seemed that the Application was outside the Tribunal’s jurisdiction.

5The Tribunal reviewed the submissions that the applicant made in response to the NOID. On August 27, 2014, by Case Assessment Direction (the “CAD”), the Tribunal directed that a Summary Hearing be held by conference call to address the allegations against the respondent. I note that these allegations are with respect to services only and that none of the allegations made by the applicant in his Application with respect to employment are relevant to the only respondent named in the Application. The allegations with respect to employment are therefore dismissed.

6The applicant and respondents sent the Tribunal written submissions in advance of the Summary Hearing.

7The Summary Hearing took place by conference call on February 4, 2015.

8The applicant asked at the end of the Summary Hearing if he could submit further evidence following the Summary Hearing. I denied that request. The applicant had made extensive written submissions prior to the Summary Hearing and extensive oral submissions during the Summary Hearing itself. Nonetheless, the applicant sent further material to the Tribunal following the Summary Hearing. I have not reviewed that material.

THE SUMMARY HEARING PROCESS

9The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, usually early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

10The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment an applicant says he or she has experienced. An individual’s belief, no matter how sincere, that they have experienced discrimination is not sufficient in and of itself to establish discrimination. An applicant must be able to point to some evidence that tends to support their belief that they have experienced discrimination.

11The CAD directed that:

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, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited [emphasis added].

12This direction is consistent with the analysis in Dabic v Windsor Police Services, 2010 HRTO 1994 at para 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.

13The CAD also directed the respondent:

… to provide a summary of its interactions with the applicant from April 2013 to May 2014, the time period relied upon by the applicant in the Application.

14Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to a consideration of this particular case.

ANALYSIS

15During the Summary Hearing, the applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically, the applicant was asked what evidence he could point to that could establish a link between the respondents’ alleged actions and the protected grounds of race, colour, ancestry, place of origin, citizenship, ethnic origin or disability.

16With respect to the ground of disability, the applicant took the position that he does not have a disability but that the respondents and others have inaccurately labelled him as a person with a disability. He was not able to point to any evidence in support of this position.

17The applicant’s main focus in his written submissions and at the Summary Hearing was his belief that conducted energy weapons (such as tasers) were used against him and affected him when he walked near police cruisers or police officers or when police cruisers drove past him. There was no physical contact between any weapon and his body; rather the effect was felt “through the air”. He felt cramping and burning on various parts of his body and sometimes could not move. He stated that his doctors could find no medical evidence that he had suffered any injury and argued that this was due to the nature of the weapons used.

18The applicant also described a police officer looking at him while he was traveling by public transit. He stated that police officers were monitoring his data while he was using a computer at a public library. He referred to several situations in which a police cruiser was parked in a transit station parking lot, on a bridge near his home or in a parking lot near his home or a police cruiser drove past him. In some of these situations, he felt pain which he concluded came from a conducted energy weapon. It was his recollection that these incidents often occurred a day or two after he contacted lawyers, politicians or human rights organizations.

19The respondents stated that they have no record of interactions with the applicant during the time period covered by the Application, i.e., from April 2013 to May 2014.

20It is clear from the applicant’s written material and his statements during the Summary Hearing that he has a sincere belief that he has been targeted and harmed by the respondents. That belief is insufficient to establish a breach of the Code without some evidence linking these incidents to a protected ground under the Code.

21Assuming, without deciding, that the applicant has suffered some harm because of actions of the respondents, I find that there is no reasonable prospect that he can succeed in establishing a violation of the Code. The applicant was unable to point to any evidence to establish a link between the respondents’ alleged actions and any protected ground under the Code. His argument on this point is summarized by his comment, “What other reason could there be? It must be because of racial profiling.” Such bare speculation does not amount to evidence which could lead to a finding of discrimination or harassment.

22Accordingly, the Application is dismissed.