Tran v. The Regional Municipality of York Police Services Board, 2017 HRTO 970

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chau Tran

Applicant

-and-

The Regional Municipality of York Police Services Board, Andrew Burford, Olena Duff, Carley Nisbett, John Parker, Chris Palmer, Darren Hodskins, Ron Peever, Barbara Sanders, Brad Plummer, Cathy Mathews, and Andrea Sequeira

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: July 28, 2017

Citation: 2017 HRTO 970

Indexed as: Tran v. The Regional Municipality of York Police Services Board

APPEARANCES

Chau Tran, Applicant

Self-represented

The Regional Municipality of York Police Services Board, Andrew Burford, Olena Duff, Carley Nisbett, John Parker, Chris Palmer, Darren Hodskins, Ron Peever, Barbara Sanders, Brad Plummer, and Cathy Mathews, Respondents

Anthony Deiana, Counsel

Andrea Sequeira, Respondent

Nicole Chrolavicius, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

2On September 7, 2016, the applicant, who identifies as being of Vietnamese origin, female, and single, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to services because of her ethnic origin, gender identity, and marital status. She attached a number of documents to her Application, including a similar complaint which she filed with the Office of the Independent Police Review Director (“OIPRD”).

3Parts of the Application are difficult to follow, but I understand the specific allegation of discrimination to be the following:

1. In oral discussions with her, some of the respondents mispronounced the word “you” as “Chu” or “Jew.” In her ethnic language, “Chu” should only be extended to a male individual who is non-elderly, and not a person who is of the female gender. In written reports, the respondents stated that she was hearing words that were not being said, which was an implication that she has mental health issues.

2. In written reports, some of the respondents referred to her by the honorific “Mrs.” rather than “Ms.”, despite the fact that she is single and not married.

4The OIPRD dismissed the applicant’s complaint on the basis that it was frivolous, and lacked substance and an objective air of reality.

5On December 14, 2016, the respondents filed a Request for Summary Hearing, which requested that the Application be dismissed on a preliminary basis because it has no reasonable prospect of success. On February 1, 2017, the Tribunal issued a Case Assessment Direction, which granted the respondents’ Request.

6The summary hearing took place by teleconference on July 21, 2017. At the outset of the hearing, as is my usual practice, I asked the parties to confirm whether or not they were recording the hearing. I ask this question because a party who is recording the hearing is required to comply with the Tribunal’s Practice Direction on Recording Hearings. The respondents responded that they were not recording the hearing, but the applicant refused to answer my question. Despite the applicant’s refusal to answer my question, I allowed the hearing to continue and simply directed her to provide a copy of any recording that she was making to the respondents and the Tribunal.

7I then heard oral submissions from the applicant, and dismissed the Application with written reasons to follow. The following are my written reasons.

ANALYSIS

8The Application relates to sections 1 and 9 of the Code, which provide:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

9Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-9:

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.

10The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

11In her submissions, the applicant merely repeated what was in her Application despite my reminder to her that she was required to explain why her Application has a reasonable prospect of success.

12In my view, the Application has no reasonable prospect of success.

13In Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), upheld 2012 ONCA 155, the Court held at para. 47 that in order to establish a case of discrimination, the applicant must prove that (1) she is a member of a group protected by the Code; (2) she was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment.

14The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, defined discrimination at pp. 174-75 as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

15Moreover, the Code is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J. stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

16In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Ontario Court of Appeal also stated at para. 104 that the Tribunal must determine, among other things, whether the treatment in issue “truly creates a disadvantage.”

17Pursuant to the first branch of the Dabic test, assuming all the allegations in the Application to be true, I find that the Application has no reasonable prospect of success. The applicant’s allegations of discrimination state that there was differential treatment based on Code grounds, but they do not state that the treatment imposed a disadvantage on her. Specifically, in both her Application and her oral submissions, she stated that she was being treated differently because of her ethnic origin, gender identity, and marital status, and did not like how she was being treated, but she did not state that the treatment imposed a disadvantage on her. Therefore, what the applicant alleges cannot reasonably be considered to amount to a Code violation.

18Alternatively, pursuant to the second branch of the Dabic test, I find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. The applicant pointed to evidence that can show a link between the incidents that occurred and her ethnic origin, gender identity, and marital status, but she failed to point to evidence that she has or that is reasonably available to her that can show that the differential treatment imposed a disadvantage on her.

19Accordingly, the Application is dismissed as having no reasonable prospect of success.

ORDER

20The Application is dismissed.