Lian Huang v. City of Toronto and Kathleen Buchanan, 2016 HRTO 945

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lian Huang

Applicant

-and-

City of Toronto and Kathleen Buchanan

Respondents

DECISION

Adjudicator: Mark Hart

Date: July 19, 2016

Citation: 2016 HRTO 945

Indexed as: Huang v. Toronto (City)

APPEARANCES

Lian Huang, Applicant

Self-represented

City of Toronto and Kathleen Buchanan, Respondents

Glenn Chu, Counsel

1This is an Application dated March 8, 2015 and completed March 25, 2015 alleging discrimination with respect to services because of race, colour, disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant self-identifies as a 67 year old man of Chinese ancestry with serious medical conditions. He owns and operates a convenience store in downtown Toronto which sells, among other things, cigarettes.

3The personal respondent is a tobacco enforcement inspector employed by the City of Toronto as part of the City’s Public Health Division.

4The matter at issue in this Application arises out of an inspection of the applicant’s convenience store conducted by the personal respondent on August 1, 2014, involving the use of an under-age test shopper. This resulted in tickets being issued to the applicant and his business for selling cigarettes to a person under 19 years of age. The applicant alleges that the personal respondent’s conduct in relation to the inspection amounts to discrimination against him because of his race, colour, disability and age.

5By Case Assessment Direction (“CAD”) dated September 29, 2015, this Tribunal directed that this matter proceed to a summary hearing to assess whether the allegations raised in the Application have a reasonable prospect of success. The primary issue to be addressed at the summary hearing was whether the applicant would be able to establish a link or connection between the alleged conduct by the personal respondent and the grounds claimed in the Application.

6The summary hearing proceeded by teleconference on April 29, 2016, at which time I heard oral submissions from the parties on this issue.

7As stated by this Tribunal in Dabic v. Windsor Police Service, 2010 HRTO 1994:

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.

8I am aware from the material filed with the Tribunal by the parties that there are significant conflicts in the versions of events as described by the applicant and the respondents. It is not the purpose of a summary hearing to resolve these conflicts. Rather, the approach at this stage of the proceeding is to consider whether, even assuming that events occurred as described by the applicant, there is a proper basis to establish a link or connection between these alleged events and one of the protected grounds under the Code as cited in the Application. However, while I will accept the applicant’s alleged version of the events as set out in the Application for the purpose of this assessment, this does not mean that I necessarily will accept the applicant’s opinions or conclusions as to why these alleged events occurred, unless the applicant can point me to some proper basis to support that his race, colour, disability or age was a factor in the personal respondent’s alleged actions.

9The Application states that, shortly after the applicant opened his store at 9:00 a.m. on August 1, 2014, a young woman came in and wanted to buy some cigarettes. He states that he asked whether she had ID, and she replied yes. He states that he turned around and opened the cigarette cabinet and got the brand she had requested, and then started checking her purchase out in the cash register. He states that before he handed the cigarettes to her, he said that he needed to check her ID. He states that the young woman again confirmed that she had ID and started looking for it. The applicant states that, based on his personal experience, he believed she was over 19 years old, and so he gave the cigarettes to the young woman and she left the store.

10In my view, what is notable about the applicant’s own account of this part of the incident is that, while he does say that he asked for ID, he never actually saw the young woman’s ID before giving her the cigarettes. I note that under s. 3(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10, it is an offence to “sell or supply tobacco to a person who is less than 19 years old”. While s.3(4) of that Act creates a defence if the vendor believes that the customer is 19 years old, this defence is only available if the customer actually produces ID. Further, s.3(2) of the Act makes it an offence to

(…) sell or supply tobacco to a person who appears to be less than 25 years old unless [the vendor] has required the person to provide identification and is satisfied that the person is at least 19 years old.

Thus, even if the applicant believed the young woman to be over 19 years old, he was still required to see her ID if she appeared to be less than 25 years old.

11The applicant states that about ten minutes after he sold the cigarettes to the young woman, the personal respondent rushed into his store, threw her ID forcefully on his counter, and yelled at him, “I’m an inspector. I want to see your photo ID and your company’s business ID”. The applicant states that he told the personal respondent that he is a sick and disabled senior, and showed her his doctor’s letter. He brought the identification for himself and his business, and the personal respondent then started writing the tickets. The identification that the applicant provided for himself personally was his driver’s licence.

12There appears to be no dispute between the parties that the personal respondent took photos of the applicant’s driver’s licence, which the applicant believes the personal respondent was not entitled to do. In fact, the personal respondent, as a tobacco enforcement officer, is entitled to make copies of records produced in the course of an inspection and, pursuant to s. 14(15) of the Smoke-Free Ontario Act, such copies are admissible in evidence. I am not aware of any legal prohibition against a tobacco enforcement officer taking a photo of a person’s driver’s licence, in order to have a true copy of the evidence required to establish the identity of the person alleged to have illegally sold cigarettes to a minor.

13The applicant states that after taking photos of his ID, the personal respondent again started to yell at him, saying that he had sold cigarettes to a young woman who was under 15 years old and gave him two tickets, one for the business and one for the applicant personally. The respondents’ Response as filed with the Tribunal states that, on this day, the personal respondent was conducting inspections in downtown Toronto with the assistance of a test shopper who was a 15 year old high school student. While the Response sets out a different version of the test shopper’s interaction with the applicant, I am prepared for the purpose of this Decision to accept the applicant’s own version of events.

14The applicant states that he asked the personal respondent to bring this young woman back, because he wanted to talk to her. He states that the personal respondent agreed to bring the young woman back and show him her ID. The applicant states that he waited a few minutes for the personal respondent to return. When she did not do so, he states that he went to the front door of the store and saw the personal respondent walking away from the store alone. He states that he asked the personal respondent to stop, but she refused to do so. He states that he said that he would call the police if she did not stop. The applicant states that he was feeling pain, so he sat down and called 911 for assistance. He states that the 911 operator yelled at him while he was on the phone. He states that a police officer then arrived and spoke to the personal respondent, and the personal respondent then left immediately. He states that the police officer came over to him and told him to “shut up”. He states that he then showed his doctor’s letter to the police officer, but the police officer told him that this was not related. He states that the police officer then left his store.

15The Application sets out the bases upon which the applicant alleges discrimination. First, he states that the personal respondent’s behaviour and rudeness was not in line with her position as an inspector. He states that in his 14 years in business, he has never seen an inspector behave like this in their work. He states that if he were not a “person of minority”, the personal respondent would not have treated him so peremptorily and unreasonably.

16This Tribunal has long held that it does not have jurisdiction to deal with allegations of unfairness or even rude or disrespectful behaviour, unless there is some proper basis to connect this alleged conduct to a protected ground under the Code. While I appreciate that the applicant may have had different interactions with other inspectors during his years in business, that does not necessarily mean that his alleged negative interaction with the personal respondent was due to his race, colour, disability or age. In this regard, I note that there is no indication in the material before me that the applicant had ever been charged with the offence of selling cigarettes to a minor before. A vendor’s interaction with an inspector in the context of being charged with such an offence would be very different from interactions with inspectors in other contexts. In any event, in my view, there is no support for the applicant’s allegation that the personal respondent’s alleged conduct was due to his race, colour, disability or age beyond mere speculation and his own personal opinion, which this Tribunal has repeatedly held to constitute a bare allegation which is insufficient to establish that the allegation has a reasonable prospect of success. See Visic v. Law Society of Upper Canada, 2012 HRTO 1642; Caster v. Hearthstone Communities Services Ltd., 2013 HRTO 111; Corpus v. Toronto Police Service, 2013 HRTO 1141.

17Second, the applicant relies upon his allegation that the personal respondent did not keep her promise to bring the young woman back and prove her allegation. I am aware that the respondents dispute that the personal respondent ever agreed to bring the young woman back to the store. In any event, I agree with the respondents that the applicant did not have the right to challenge the alleged evidence of the offence right then and there in his store. Rather, that is the purpose of a criminal trial, where the young woman would have to be produced and testify as a witness in order to sustain the charges. Whether or not the personal respondent agreed to bring the young woman back, I see nothing here that would support an allegation of discrimination in violation of the Code.

18The applicant next makes reference to the personal respondent having taken photos of his driver’s licence. As indicated above, she was entitled to do so. There is nothing here that supports an allegation of discrimination in violation of the Code.

19The applicant next states that the personal respondent continued to yell at him even after he showed her the doctor’s letter, thereby ignoring his disability. For the purpose of this Decision, I accept that the applicant is a person with a disability and that he showed a doctor’s letter to the personal respondent. This, however, does not establish any link or connection between the personal respondent’s alleged conduct and the applicant’s disability. The applicant alleges that the personal respondent yelled at him before he showed her the doctor’s letter, and continued to yell at him after he showed her the doctor’s letter. There is nothing to support an allegation that the personal respondent yelled at the applicant because of his disability, as required to establish a violation of the Code.

20The applicant next relies upon the fact that the personal respondent called the police. He alleges that she provided biased information to the police, which caused the police to treat him the way they did. In my view, I see no reason for the police to have been involved at all in this matter. However, I note that both parties appear to have contacted the police, for whatever reason. Given that the applicant himself believed that the situation warranted calling 911 to request police assistance, it is difficult for me to understand how he can at the same time allege that it was discriminatory for the personal respondent also to seek police involvement. Further, the allegation that the personal respondent made biased or discriminatory statements about the applicant to the police is pure speculation on the applicant’s part. In my view, the police officer’s reaction more likely is attributable to having been bothered to respond to a situation that did not require police involvement.

21Finally, the applicant relies on the fact that, following this incident, he was provided with a letter informing him of his obligations under the Smoke-Free Ontario Act, and advising him that two or more convictions within a five year period could result in a six month prohibition from selling cigarettes. The respondents in their Response state that it is standard practice to send such a letter out by registered mail following the issuing of a ticket, but in this case the letter was not picked up by the applicant. As a result, the letter was delivered to the applicant’s store by another inspector. Given that the police had been involved the last time the personal respondent attended at the applicant’s store, in my view it is entirely reasonable for this letter to have been delivered by another inspector. In any event, there is nothing about this letter that supports an allegation of discrimination in violation of the Code.

22In other materials filed with the Tribunal and in his oral submissions, the applicant also relies upon his subsequent attempts to obtain an apology from the personal respondent and the return of photos of his driver’s licence, which included calls to the personal respondent’s supervisor and the involvement of the City’s Ombudsman’s Office. I note that these are not allegations included in the Application. In any event, there is nothing about the respondents’ refusal to provide an apology, in circumstances where they do not acknowledge any wrongdoing, or return photos of the applicant’s driver’s licence, which the personal respondent was entitled to take, which supports an allegation of discrimination in violation of the Code.

23For all of the above reasons, I find that the allegations raised in the Application have no reasonable prospect of success.

ORDER

24The Application is dismissed as having no reasonable prospect of success.