Ng v. Chief of Toronto Police Service, 2016 HRTO 871

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Ng

Applicant

-and-

Chief of Toronto Police Service and the

Office of the Independent Police Review Director

Respondents

DECISION

Adjudicator: Bruce Best

Date: June 30, 2016

Citation: 2016 HRTO 871

Indexed as: Ng v. Chief of Toronto Police Service

APPEARANCES

Michael Ng, Applicant

Self-represented

Chief of Toronto Police Service, Respondent

David Tortell, Counsel

Office of the Independent Police Review Director, Respondent

Lynette D’Souza, Counsel

Introduction

1This Application alleges discrimination with respect to services because of sex contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2The application was originally brought against three respondents; the Chief of Toronto Police, the Ministry of the Attorney General, and the Office of the Independent Police Review Director (“OIPRD”). An Interim Decision was issued on October 22, 2015, 2015 HRTO 1409, dismissing the application against the Ministry on the basis of prosecutorial immunity. That Interim Decision further directed that the Tribunal would hold a summary hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure with respect to the allegations against the remaining two respondents to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3The Interim Decision further directed that this hearing may address whether the Application is, with respect to the allegations against the OIPRD, an abuse of process in that it is a collateral attack on the Director's decisions to screen out the applicant's complaints.

4As explained more fully below, I find that the Application must be dismissed against both respondents on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions, feelings or beliefs that support his assertions that the treatment he received from the respondents was due to his gender.

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment he allegedly experienced with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant claims that he wrote a letter to the residents and management of a condo building in downtown Toronto, reporting that the occupant of one of the units was operating a brothel. He claims that he was later threatened by a man in a downtown mall with respect to his letter. The applicant later went to the condominium building, and a confrontation ensued between himself and the woman he alleged was running the brothel (“the complainant”).

11The complainant called the police, claiming that the applicant had been stalking her, and that he was harassing and threatening her and the other individuals in the condominium unit. When the police arrived and questioned the applicant, they found a backpack which contained a sign saying “Go Away Hookers”. The applicant told the police it was not his backpack, but that it had been left in the hallway by another woman who had recently left the unit (though in these proceedings, the applicant did acknowledge that the sign was, in fact, his). The applicant was arrested and charged with criminal harassment.

12The applicant argues that what he was doing was not harassment but rather was reporting illegal activities, and that the police therefore had no basis on which to arrest him. He further claims that when he was arrested, he told the police about the threats he had received, and claims that the police did not conduct a proper investigation into his allegations.

13The applicant claims the police engaged in “gender profiling” by acting on what he considers to be non-criminal allegations of harassment from the female complainant, but not acting on his allegations that he had been criminally threatened. He makes broad claims in the Application that the police do not take it seriously when a man is a victim of crime, but only when the victim is a woman.

14The applicant was given an opportunity at the summary hearing to indicate what evidence he would present to prove that the actions of the police were discriminatory. The applicant provided a number of documents from the criminal proceedings which he claims pointed to inconsistencies in the complainant’s story. The applicant argued the proposed evidence demonstrated the police should never have believed the complainant, and should rather have believed him.

15The charges were subsequently dropped against the applicant, apparently by mistake. Following the charges being withdrawn, the applicant continued to pressure the police to investigate his allegations.

16What the applicant characterizes as the most important part of the case is a memo from one of the investigating officers. The memo explains the circumstances leading to the withdrawal of the criminal harassment charges against the applicant, and concludes that “At this point, I understood that I misinterpreted [the complainant’s] emails and that the criminal harassment charges against NG should never have been withdrawn.” He argues that the only explanation for this sentence is that the investigating officer, instead of conducting a proper investigation, had simply accepted the complainant’s story throughout. He claims that there is “clear evidence” the police took her side. He claims that the police wrongly insisted that she was a victim, when in fact the victims were himself and the other residents in the building. He argues that this is proof that the police only listen to women.

17His allegations against the respondent OIPRD are essentially that it failed to expose the allegedly discriminatory actions of the police. At the summary hearing, he stated that the OIPRD would have acted differently if he was a woman. When asked directly what evidence he would present to support that claim, he said he had no evidence, it was just his feeling.

Decision

18In my view, the Application has no reasonable prospect of success. The applicant has not been able to point to any evidence that could reasonably support a finding that the actions of the respondents were motivated by gender discrimination.

19At best, the evidence he proposed might establish that the police found the complainant more believable than the applicant. The mere fact, however, that the police believed a woman and did not believe a man is not evidence of gender discrimination. Even accepting that the police did not conduct a proper investigation of his allegations, or did not properly check out the complainant’s story, does not in and of itself lead to the conclusion that the reason for the failure was discriminatory. Absent any other evidence, there is simply no reasonable prospect the applicant will succeed.

20As noted above, one of the foundations of the applicant’s claim is that the police had no basis to charge him. He claims that his actions could not be considered criminal harassment because the complainant was (allegedly) engaged in an illegal activity herself. However, a person is not entitled to engage in harassing behaviour simply because they believe the other person has done something illegal.

21With respect to the OIPRD, as the applicant acknowledged, he has nothing more than a feeling that the dismissal of his complaint was based on gender discrimination.

22As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond her or his own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

Order

23For the above reasons, the Application is dismissed.