HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hervé Ngamby
Applicant
-and-
Ontario New Democratic Party and James Pratt
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Ngamby v. Ontario New Democratic Party
APPEARANCES
Hervé Ngamby, Applicant
Self-represented
Ontario New Democratic Party and James Pratt, Respondents
George Viucic, Counsel
1This Application alleges discrimination with respect to employment because of race, colour, place of origin, ethnic origin, reprisal and being in association with a person to whom these grounds apply contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Though the respondents raised the issue that their relationship is not “with respect to employment” as contemplated by the Code, this Decision only deals with the issue of whether the Application should be dismissed as having no reasonable prospect of success. A summary hearing was held to hear the parties’ submissions on the issue during which all parties participated.
3The respondents sought to consolidate this Application with Application 2014-19606-I, filed by another applicant (“the other applicant”). Both applicants opposed this request. The Tribunal determined that it would review whether it is appropriate to consolidate these Applications, if necessary, after the summary hearing.
What this Application is About
4The applicant, who self-identifies as Black, was an official candidate for the respondent Ontario New Democratic Party, (the “ONDP”) in the 2014 provincial election. The applicant was not elected. A volunteer (the “complainant”) alleged that the applicant had subjected her to sexual harassment during the course of the campaign. At the time of filing the Application, the applicant states that he did not even know the name of the complainant as it was not disclosed to him.
5The applicant believes that the ONDP has engaged in an elaborate conspiracy to discredit his reputation. The applicant explained during the summary hearing that on October 24, 2014, an ONDP member invited the other applicant, who is also Black, to attend a secret meeting (this is the applicant’s characterization of this meeting but I will refer to it as “the event”). The member explicitly told the other applicant that the applicant was not invited to this event and that she should keep this conversation confidential. The other applicant did not go to the event because she was upset that the applicant was not invited. The applicant alleges that he was not invited to this meeting because he is Black.
6During the summary hearing the applicant explained that he believes that the ONDP was trying to get a female member to lodge a false complaint of sexual harassment against him to discredit his reputation and that is why the other applicant was invited to the event. Ultimately, the applicant believes that the ONDP convinced the complainant to file a false complaint of sexual harassment to discredit his reputation so that he could no longer run as a representative in future elections. He also believes that he is being “morally harassed” by the respondents.
7The other applicant wrote to the ONDP to denounce the fact that the applicant was not invited to the event and to lodge her own complaint of sexual harassment against another member of the ONDP, which forms part of the allegations in the other Application. The applicant also believes the respondents are reprising against him because of the other applicant’s complaint.
8The ONDP advised the applicant that he would not be selected as its candidate in the upcoming federal election in light of the complaint against him. The ONDP scheduled a mediation to address the complaint; however, the applicant did not wish to participate because he believed that he did not have sufficient particulars of the nature of the complaint including the complainant’s identity. Subsequently, the complainant reported her allegations to the police.
The Law
9In Peel Law Association v. Pieters, 2013 ONCA 396 at para: 59, the Ontario Court of Appeal discussed the elements required to show a prima facie case of discrimination under the Code, holding that the applicant must prove:
he or she is a member of a group protected by the Code;
he or she was subject to adverse treatment; and,
there was a connection between the adverse treatment and the ground of discrimination invoked.
10In 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:
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.
11In 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.
12The applicant states that the respondents’ alleged actions are a reprisal. Section 8 of the Code , which prohibits reprisals or threats of reprisals, states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.
13As the Tribunal stated in Noble v. York University, 2010 HRTO 878, in order to prove reprisal, an applicantmust establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code.
14I have considered the applicant’s submissions. The Tribunal has repeatedly stated that it does not have jurisdiction over all allegations of general unfairness, nor does it have jurisdiction over allegations of slander or conspiracy. In order for the Tribunal to have jurisdiction over the subject-matter of an application it must relate to a prohibited ground under the Code. At a summary hearing the applicant must demonstrate that there is some evidence to support that a prohibited ground was a factor in in the alleged adverse treatment.
15In this case, I find that, apart from pure speculation, the applicant has no evidence to support his belief that the respondents’ alleged actions are related to any of the prohibited grounds claimed.
16With respect to the allegation that he was not invited to the event because of his race, colour and ethnic background I find that this has no reasonable prospect of success because the other applicant who is Black was invited. I do not believe therefore that the applicant will be able to prove a prohibited ground of discrimination in being excluded from this event.
17With respect to the applicant’s allegation that the respondents conspired to fabricate a false allegation of sexual harassment against him to ruin his political career I make the following observations. As stated previously, I note that the Tribunal does not have jurisdiction over allegations of conspiracy. Further, there is no dispute that the respondent ONDP had previously selected the applicant to represent it in the provincial election. It is also true that there are many other ways that the ONDP could refuse to permit the applicant to represent it that would not have such potential negative impact on the party. In my view it is highly improbable that the respondents would intentionally fabricate false allegations of sexual harassment against the applicant given the potentially embarrassing consequences to the ONDP.
18Having considered the applicant’s submissions, I am of the view that these allegations against the respondents are simply accusations based on pure speculation and have no reasonable prospect of success.
19With respect to the applicant’s allegation of reprisal I note that, even based on the applicant’s own theory of discrimination, the conspiracy and allegations against him commenced prior to the other applicant’s complaint to the ONDP. Further, there is no proposed evidence to support that any of the respondents’ alleged actions were to punish and/or reprise against the applicant for having attempted to enforce his Code rights and as such they also have no reasonable prospect of success.
Order
20For the reasons provided above the Application is dismissed.
Dated at Toronto, this 11th day of May, 2016.
“Signed By”
Geneviève Debané
Vice-chair