Elgasuani v. Port Hope (Municipality), 2015 HRTO 902

Human Rights Tribunal of Ontario

Between:

Arthur Elgasuani Applicant

-and-

The Municipality of Port Hope, Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (the “OPP”), Port Hope Police and the Cobourg OPP Respondents

Decision

Adjudicator: Kevin Cleghorn Date: July 8, 2015 Citation: 2015 HRTO 902 Indexed as: Elgasuani v. Port Hope (Municipality)

Appearances

Arthur Elgasuani, Applicant | Self-Represented Municipality of Port Hope, Respondent | Suzanne Hunt, Counsel

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in services and housing on the basis of race, ancestry, place of origin, ethnic origin, disability, creed, receipt of public assistance, record of offences and reprisal.

2By Case Assessment Direction dated February 6, 2015, the Tribunal directed that a summary hearing be held in this matter by teleconference. It states as follows at paragraphs 6 and 10 (in part):

Having reviewed this Application, 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 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 respondents’ actions and the grounds cited.

3This summary hearing dealt with a series of Applications in accord with Case Assessment Directions dated February 6, 2015 (for file number 2014-18875-I), April 10, 2015 (for file number 2015-20399-I) and May 26, 2015 (for file number 2015-20898-I). The third Application (under file number 2015-20898-I) was initiated in the week preceding the summary hearing. The Applications under consideration deal with the same subject matter and chain of events. For the most part, the Applications also involve the same respondents.

Analysis

Summary Hearings

4Rule 19A of the Tribunal’s Rules of Procedure reads 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 of witness statements.

5The test is whether an application, in whole or in part, has no reasonable prospect of success. If, after considering the submissions and arguments made by the applicant, he has been unable to point to any information which tends to support his belief that he has experienced discrimination or reprisal under the Code, the Application (or in this case Applications) will be dismissed as having no reasonable prospect of success. If some or all of the allegations are not dismissed at this stage, they will continue in the Tribunal’s process and might be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

6In Dabic v. Windsor Police Service, 2010 HRTO 199 at paras. 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Arguments of the Applicant

7The applicant occupies property near East Townline Road in Port Hope, Ontario. The crux of the applicant’s position is that he experienced harassment from neighbours over his use of his property and the care and treatment of his animals. When he sought assistance from the local detachment of the Ontario Provincial Police and/or the Port Hope Police, he was denied any type of assistance. He was harassed by the Municipality of Port Hope in terms of the size and nature of the buildings on his land and the state of his animals. He alleges that there is a conspiracy against him as the neighbours in question (who he says are local drug dealers) are supported by and/or are related to police officers involved in the various investigations which ensued. The neighbours have trespassed on his property or harassed him by driving close to his property. His “no trespassing” signs have been removed by the neighbours.

8The applicant maintains that he has had leaves dumped on his property and been threatened by the police. He alleges widespread corruption at the municipal political level. All of the municipal politicians, officials, police officers and neighbours are systematically working against him. The municipality has taken him to Court over alleged by-law breaches. The applicant contends that the decisions made against him in Superior Court are illegal.

9The applicant mentions in his Applications other issues such as the municipality blocking access to his property in winter by creating a large snow pile near same and that the Ontario Provincial Police are taking directions from the Port Hope Mayor. He claims discrimination on the basis of his ethnic origin (Russian) specifically, as the police officers have told him that “This is Canada, not Russia”.

10The applicant wants an assurance that the pattern of harassment and discrimination will cease. He seeks the peaceful use and enjoyment of his land and the ability to tend his animals as he sees fit.

Arguments of the Respondent, Municipality of Port Hope

11Counsel for the respondent, Municipality of Port Hope, argues that there is no link to the allegations made by the applicant and any of the grounds that he cites. Counsel submits that the Code does not deal with general allegations of unfair treatment or harassment and that all of the Applications consist of nothing more than bald assertions. There is no link to the Code in this instance and as such all Applications should be dismissed.

12In terms of the by-law enforcement issues, it is submitted that the matter has been dealt with in Superior Court, but that the applicant does not accept the outcome of the court proceeding.

Reply of the Applicant

13The applicant replies that there is ample and continuing evidence of the harassment and discrimination that he experiences on an ongoing basis. He states that the harassment has taken the form of the Municipality of Port Hope making him pay for production of documents in response to a freedom of information request.

The Law

14The Applications themselves and the submissions of the applicant are devoid of particulars of any differential treatment or reprisals per se. The argument of the applicant is essentially that there can be no other basis for the lack of an appropriate response to his complaints but his race or ethnic origin (he made no other submissions in relation to the other personal characteristics he cites in his Applications). Similarly, his view is that any treatment that he received from the respondents, or any of them, must be discriminatory because it did not meet his expectations in terms of the service that he should be afforded or was based upon inappropriate bases such as nepotism, corruption or reprisal.

15It is not sufficient to make bald assertions to establish discrimination or differential treatment: see Sosoo v. Winners Merchants, 2010 HRTO 1367 (“Sosoo”); Jagait v. IN TECH Risk Management, 2009 HRTO 779; and Howard v. 407 ETR Concession, 2011 HRTO 1511 (“Howard”). Despite the belief of the applicant, the initial onus is on him to establish that there is some evidence to support his allegations of discrimination in the absence of any such link in his Applications: see Sosoo paras. 66-67 and Howard at para. 13. The threshold for establishing a reasonable prospect of success at the summary hearing stage may be a low one but, ultimately, there must be some foundation upon which the Tribunal can find that the applicant was discriminated against, and that the discrimination is linked to a prohibited ground under the Code: see Sosoo at para. 71 and Howard at para. 17.

16In the instance case, there is an absence of any proposed evidence of discrimination whatsoever, by the applicant; either direct or circumstantial. As opposed to merely insufficient, ambiguous or general evidence being offered in this matter by the applicant, there is, in fact, an absence of any evidence whatsoever. There were literally no allegations that could form any basis for establishing a Code violation, beyond mere conjecture or speculation on the part of the applicant. Comments by police officers about which country’s laws are applicable (Canada as opposed to Russia) do not rise to the level of even establishing an inference that the applicant’s ethnic origin played any role in his treatment by them. It is not discriminatory for a government office to charge a fee for production of documents, unless no other person is charged for doing that and the charge is assessed because of the applicant’s personal characteristics. A cost for the provision of documents under a freedom of information request cannot be characterized as form of reprisal based upon the information provided by the applicant. On a general basis, there is no evidence of any sort offered by the applicant that links a prohibited ground under the Code with the treatment afforded to him by any other respondent at any time.

17As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

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.

The Tribunal also does not have the general power to decide whether the respondents treated the applicant fairly and appropriately: see Tubquabo v. University of Ottawa, 2010 HRTO 477 at para. 6. There is no evidence in any event which establishes a nexus with a proscribed ground of discrimination under the Code. There is no evidence whatsoever to suggest that the actions of any of the respondents have amounted, to date, as any form of reprisal against the applicant at any time.

18If I accept the facts as alleged in the Applications, I am unable to conclude that there is a link between those facts and discrimination on the grounds of any of race, ancestry, place of origin, ethnic origin, disability, creed, receipt of public assistance, record of offences and reprisal. As opposed to pointing me to any evidence in the Applications or that he could obtain that would support the conclusion that any of the above-mentioned grounds was a factor in the respondents’ treatment of him, the applicant chose to provide a lengthy recantation of the information previously outlined in his Applications. He did not offer anything in the way of evidence to support a nexus between his allegations and a prohibited ground of discrimination under the Code, despite the clear wording of the Case Assessment Directions and a reminder of his need to do just that at the outset of the summary hearing.

Decision

19For all the foregoing reasons, I have concluded that there is no reasonable prospect any of these Applications can succeed. Therefore, the Applications are dismissed.